Theriot v. Building Trades United Pension Trust Fund

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DEBORAH THERIOT CIVIL ACTION

VERSUS No. 18-10250

BUILDING TRADES UNITED

PENSION TRUST FUND, ET AL. SECTION I

ORDER & REASONS

Before the Court is defendants Building Trades United Pension Trust Fund

(“the Fund”) and the Fund’s Board of Trustees’ (“Trustees”)1 (collectively, the

“defendants”) motion2 for summary judgment with respect to count III of plaintiff

Deborah Theriot’s (“Theriot”) second amended complaint.3 Theriot opposes their

motion.4

Five days after filing her opposition, Theriot filed a motion for leave to

supplement her opposition to defendants’ motion with two exhibits, which this Court

granted.5 One of these exhibits was Theriot’s sworn declaration.6 Defendants moved

for sanctions and to strike Theriot’s declaration pursuant to the “sham affidavit rule”7

1 Defendants do not dispute that they are proper defendants as to count III, as the

Board of Trustees is the administrator of the plan. See R. Doc. No. 51, at n.2.

2 R. Doc. No. 68-4.

3 See R. Doc. No. 44, at ¶¶ 28–29. Counts I, II, IV, and V of Theriot’s second amended

complaint were dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). See

R. Doc. No. 51; Theriot v. Building Trades United Pension Trust Fund, No. 18-10250,

2019 WL 3220106 (E.D. La. July 17, 2019).

4 R. Doc. No. 85.

5 R. Doc. Nos. 92 & 93.

6 R. Doc. No. 92-3.

7 R. Doc. No. 95, at 2.

and Theriot opposed that motion.8 Defendants then moved to supplement their

motion for summary judgment with “an order by the 24th Judicial District Court of

the State of Louisiana to appoint Deborah Theriot as the independent administrator

to the Audry Hamann Estate on November 28, 2018” (“Order of Appointment”).9

Theriot then filed a supplemental memorandum in opposition to defendants’ motion

for summary judgment.10 Defendants moved to strike Theriot’s supplemental

memorandum11 and Theriot opposed that motion.12 For the following reasons, the

motion for summary judgment is granted.

I.

Count III of Theriot’s second amended complaint alleges that the Fund,

through its Trustees, failed to timely produce requested plan documents in violation

of ERISA, 29 U.S.C. § 1024(b)(4) and that, therefore, Theriot is entitled to penalties

under 29 U.S.C. § 1132(c).13 Theriot made two separate requests for documents that

are at issue: a request on November 1, 2017 (the “2017 request”), and two identical

requests on November 2, 2018 and December 19, 2018 (the “2018 requests”).

Defendants move for summary judgment on the basis that Theriot did not have

standing to request either set of documents under § 1024(b)(4).14 Alternatively,

defendants argue that they complied with the 2017 request and did not fail to produce

8 R. Doc. No. 99.

9 R. Doc. Nos. 105 & 105-3.

10 R. Doc. No. 106.

11 R. Doc. No. 109.

12 R. Doc. No. 110.

13 R. Doc. No. 44, at ¶¶ 28–29; see also R. Doc. No. 85, at 9.

14 R. Doc. No. 68-4, at 1–2.

any documents in response to the 2018 requests that must be provided under §

1024(b)(4).15

II.

Summary judgment is proper when, after reviewing the pleadings, the

discovery and disclosure materials on file, and any affidavits, the Court determines

that there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. “[A] party

seeking summary judgment always bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of [the record]

which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment

need not produce evidence negating the existence of a material fact; it need only point

out the absence of evidence supporting the other party’s case. Id.; see also Fontenot v.

Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).

Once the party seeking summary judgment carries its burden, the nonmoving

party must come forward with specific facts showing that there is a genuine dispute

of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986). The showing of a genuine issue is not satisfied by creating “‘some

metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ by

‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted).

15 Id. at 2.

A genuine issue of material fact exists when the “evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). “Although the substance or content of the

evidence submitted to support or dispute a fact on summary judgment must be

admissible . . . , the material may be presented in a form that would not, in itself, be

admissible at trial.” Lee v. Offshore Logistical & Transp., LLC, 859 F.3d 353, 355 (5th

Cir. 2017) (citations omitted). The party responding to the motion for summary

judgment may not rest upon the pleadings but must identify specific facts that

establish a genuine issue. Anderson, 477 U.S. at 248. The nonmoving party’s

evidence, however, “is to be believed, and all justifiable inferences are to be drawn in

[the nonmoving party’s] favor.” Id. at 255; see also Hunt v. Cromartie, 526 U.S. 541,

552 (1999).

“[A] district court has somewhat greater discretion to consider what weight it

will accord the evidence in a bench trial than in a jury trial.” Matter of Placid Oil Co.,

932 F.2d 394, 397 (5th Cir. 1991). “[W]here ‘the evidentiary facts are not disputed, a

court in a nonjury case may grant summary judgment if trial would not enhance its

ability to draw inferences and conclusions.’” Id. (quoting Nunez v. Superior Oil Co.,

572 F.2d 1119, 1124 (5th Cir. 1978)); see also Manson Gulf, L.L.C. v. Modern Am.

Recycling Serv., Inc., 878 F.3d 130, 134 (5th Cir. 2017).

III.

Pursuant to 29 U.S.C. § 1024(b)(4),

“[t]he administrator shall, upon written request of any participant or

beneficiary, furnish a copy of the latest updated summary[] plan description,

and the latest annual report, any terminal report, the bargaining agreement,

trust agreement, contract, or other instruments under which the plan is

established or operated” (emphasis added).

Section 1132(c) gives courts discretion to award penalty damages for

violations of § 1024(b)(4):

“Any administrator . . . who fails or refused to comply with a request for any

information which such administrator is required by this subchapter to

furnish to a participant or beneficiary. . . within 30 days after such request

may in the court’s discretion be personally liable to such participant or

beneficiary in the amount of up to $100 a day from the date of such failure or

refusal, and the court may in its discretion order such other relief as it deems

proper” (emphasis added).

A request for plan documents must “provide clear notice to the plan

administrator of the information [the plaintiff] desire[s]” to trigger statutory

penalties. Van Bael v. United Healthcare Services, Inc., No. 18-6873, 2019 WL

160183, at *3 (E.D. La. Jan. 10, 2019) (Africk, J.) (quoting Kollman v. Hewitt Assocs.,

LLC, 487 F.3d 139, 145 (3d Cir. 2007); citing Fisher v. Metro. Life Ins. Co., 895 F.2d

1073, 1077 (5th Cir. 1990)) (citations omitted). The “touchstone” of sufficiency “is

whether the request provides the necessary clear notice to a reasonable plan

administrator which, given the context of the request, should be provided.” Center for

Restorative Breast Surgery, LLC v. Humana Health Benefit Plan of La., Inc., No. 10-

4346, 2015 WL 4394034, at *17 (E.D. La. July 15, 2015) (Fallon, J.) (quoting Kollman,

487 F.3d at 146; citing Fisher, 895 F.2d at 1077). Whether to award statutory

penalties for violations of § 1024(b)(4) is within the discretion of the court. 29 U.S.C.

§ 1132(c)(1).

A. Pending Motions

The Court will first address the motions that have been filed since defendants

filed their motion for summary judgment. The exhibits filed by both Theriot and

defendants to supplement the summary judgment record relate to whether Theriot,

through her counsel at the time (the Javier Firm),16 had standing to make a request

for documents on behalf of Audry Hamann’s estate (“the Estate”) on November 1,

2017. 29 U.S.C. § 1024(b)(4) only requires plan administrators to respond to requests

for information from participants and beneficiaries. Theriot was not a participant or

beneficiary under defendants’ plan, and she only had derivative standing to request

documents as a representative of her mother, Audry Hamann’s, estate.17 See James

v. La. Laborers Health & Welfare Fund, 766 F. Supp. 530, 531 (E.D. La. 1991)

(Feldman, J.) (discussing Hermann Hosp. v. MEBA Med. & Benefits Plan, 845 F.2d

1286, 1287–89 (5th Cir. 1988), overruled on other grounds by Access Mediquip, L.L.C.

v. UnitedHealthcare Ins. Co., 698 F.3d 229 (5th Cir. 2012) (mem.)).18 Therefore,

defendants’ response to the 2017 request can only trigger statutory penalties if the

Javier Firm represented Theriot, in her capacity as administrator of the Estate, on

November 1, 2017. Accordingly, Theriot must have had the authority to act on behalf

of the Estate on November 1, 2017.

16 Theriot has since retained new counsel.

17 The Court assumes, arguendo, that a person with derivative standing to bring

claims under ERISA also has standing to request documents and bring a claim for

statutory penalties pursuant to §§ 1024(b)(4) and 1132(c).

18 The Court discussed at great length Theriot’s derivative standing to bring her

claims under ERISA in its order and reasons granting defendants’ motion to dismiss.

R. Doc. No. 51, at 8–9.

Theriot swears in her declaration that she:

“engaged the Javier Firm to represent [her], both individually and as a

representative of [the Estate]. In that capacity, [she] authorized the Javier

Firm to request plan documents, and to take whatever steps necessary to

protect [her] mother’s right to the lump-sum benefit available under the Fund’s

ERISA plan. Pursuant to this engagement, on November 1, 2017, the Javier

Firm requested that [the Fund] produce a complete copy of the plan agreement

and other documents as detailed in Exhibit 8[.]”19

Defendants filed a motion for sanctions and to strike Theriot’s declaration

pursuant to the “sham affidavit rule,”20 which Theriot opposes.21 Shortly thereafter,

defendants filed a motion to supplement the summary judgment record with the

Order of Appointment, which shows that Theriot was not appointed independent

administrator of the Estate until November 28, 2018.22 Theriot did not object to this

motion, provided that she had the opportunity to file a response.23 Theriot filed a

response, making additional arguments as to why summary judgment should not be

granted.24 Defendants moved to strike Theriot’s supplemental memorandum on the

grounds that the memorandum did not address the new evidence, the Order of

19 R. Doc. No. 92-3, at ¶¶ 7–8.

20 R. Doc. No. 95, at 2. The sham affidavit rule provides that a “‘party may not

manufacture a dispute of fact merely to defeat a motion for summary judgment’ . . .

because, if ‘a party who has been examined at length on deposition could raise an

issue of fact simply by submitting an affidavit contradicting his own prior testimony,’

‘the utility of summary judgment as a procedure for screening out sham issues of fact’

would be greatly diminished.” Hacienda Records, L.P. v. Ramos, 718 F. App’x 223,

235 (5th Cir. 2018) (quoting Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380,

386 (5th Cir. 2000) (citations omitted)).

21 R. Doc. No. 99.

22 R. Doc. Nos. 105 & 105-3.

23 R. Doc. No. 105, at ¶ 12.

24 R. Doc. No. 106.

Appointment, but rather only made new arguments as to why defendants’ summary

judgment motion should not be granted.25 Theriot opposed that motion.26

The Court finds good cause to allow defendants to supplement the summary

judgment record with the newly discovered evidence because Theriot allegedly did

not turn over the Order of Appointment until after defendants moved for summary

judgment.27 Theriot does not argue that defendants possessed the Order of

Appointment before they filed their motion. Theriot’s declaration does not directly

contradict the Order of Appointment, but the Court will consider Theriot’s sworn

statements in light of the Order of Appointment.28 Further, the Court will only

consider those paragraphs of Theriot’s supplemental memorandum that relate to the

Order of Appointment.29 Theriot had several opportunities to argue in opposition to

defendants’ motion for summary judgment, and the Court finds no reason to allow

Theriot to continuously present new arguments and reiterate her previous assertions.

B. 2017 Request

The Court will first consider Theriot’s 2017 request. In a letter dated November

1, 2017, Roger Javier (“Javier”) of the Javier Firm sent a letter to defendants advising

25 R. Doc. No. 109-1.

26 R. Doc. No. 110.

27 See R. Doc. No. 105, at 2.

28 Theriot declares that she engaged the Javier Firm to represent herself “both

individually and as representative of [her] mother’s estate.” See R. Doc. No. 92-3, ¶ 7.

Theriot does not directly state that as of November 1, 2017, she was the appointed

representative of the Estate. Id. The Court will not address whether Theriot’s

declaration conflicts with her prior deposition testimony because it is irrelevant to

the Court’s decision. The Court, therefore, exercises its discretion and it declines to

impose sanctions on Theriot for filing an allegedly sham affidavit.

29 R. Doc. No. 106, at ¶¶ 1–2.

them that he “represent[s] the interests of the estate of Ms. Audry Hamann, and also

Debbie Theriot and Carl Panebiango, children of Audry Hamann[.]”30

As a preliminary matter, defendants argue that “[b]ecause Deborah Theriot

did not become the administrator for the Hamann Estate until November 28, 201[8],31

she had no authority to retain the Javier Firm as counsel for the Hamann Estate by

November 1, 2017.”32 Defendants do not dispute that had Theriot been acting on

behalf of the Estate, she would have had standing to request documents pursuant to

§ 1024(b)(4) on November 1, 2017.33 Therefore, the question is whether Theriot was

acting in her personal capacity or on behalf of the Estate when she retained the Javier

Firm to make a request for documents on November 1, 2017.

Theriot makes two arguments in her opposition to defendants’ motion for

summary judgment: first, that defendants are attempting to enforce a “form

requirement” for the appointment of an authorized representative that is not in the

plan document and, second, that defendants waived their right to raise this

argument.34

30 R. Doc. No. 85-7, at 1.

31 Defendants erroneously state in their brief that Theriot did not become

administrator of the Estate until November 28, 2017. See R. Doc. No. 105, at 3 ¶ 7.

Theriot became administrator of the Estate on November 28, 2018. See R. Doc. No.

105-3.

32 R. Doc. No. 105, at 3 ¶ 7. Theriot does not argue that she had standing in her

personal capacity to request documents under 29 U.S.C. § 1024(b)(4).

33 Defendants dispute that Theriot had standing to make the 2018 requests, but on

different grounds. See R. Doc. No. 68-4, at 6–10.

34 R. Doc. No. 85, at 3–6.

Theriot argues in her opposition to defendants’ motion to strike her declaration

that she was Ms. Hamann’s universal successor pursuant to Louisiana Civil Code

Article 935 and, therefore, “could represent Mrs. Hamann to enforce her rights

immediately upon her death.”35 Further, Theriot argues that she “exercised this

ability by engaging the Javier Firm to enforce the payment of the lump-sum benefit

to which Mrs. Hamann became entitled prior to her death.”36

Finally, Theriot argues in her supplemental memorandum in opposition to

defendants’ motion for summary judgment that “consideration of Plaintiff’s claims

should have been tolled until such time as a succession representative qualified or

until such time as Defendants produced the plan documents giving rise to the Audry

Hamann claim.”37 Alternatively, Theriot argues that “the running of the time

limitations for administrative review should have been equitably tolled until Audry

Hamann officially became estate administrator.”38 The Court will address each of

Theriot’s arguments in turn.

1. Authorized Representative

Theriot argues that defendants are “attempt[ing] to impose a form requirement

for the Javier Firm’s appointment as the representative of Audry Hamann’s estate

when no such requirement exists in the plan.”39 Further, Theriot argues that

35 R. Doc. No. 99, at 3.

36 R. Doc. No. 99, at 3.

37 R. Doc. No. 106, at ¶ 1.

38 R. Doc. No. 106, at ¶ 1.

39 R. Doc. No. 85, at 3.

imposing this “form requirement” that is not included in the plan document and

summary plan description violates 29 C.F.R. § 2560.503-1(b)(4).40

Pursuant to 29 C.F.R. § 2560.503-1(b)(4), a plan’s claims procedures will be

deemed reasonable only if “[t]he claims procedures do not preclude an authorized

representative of a claimant from acting on behalf of such claimant in pursuing a

benefit claim or appeal of an adverse benefit determination.” However, “a plan may

establish reasonable procedures for determining whether an individual has been

authorized to act on behalf of a claimant[.]” Id. Theriot argues that defendants are

now trying to enforce procedures for determining whether Theriot was authorized to

act on behalf of Ms. Hamann when no such “form requirement” was in either the plan

document or summary plan description.41

The Court finds that Theriot was not an “authorized representative” as

contemplated by § 2560.503-1(b)(4) and, therefore, defendants are not attempting to

retroactively impose procedures in violation of 29 C.F.R. § 2560.503-1(b)(4). Ms.

Hamann did not take affirmative action to authorize Theriot to act on her behalf.

Rather, Theriot, by operation of law, gained the right to act on the Estate’s behalf on

November 28, 2018 as its independent administrator.42 See, e.g., Van Bael, 2019 WL

142298, at *6 (discussing whether the plan’s procedures were fair and reasonable in

light of the written authorization form the plaintiff’s attorney was required to submit

as the authorized representative); Omega Hospital, LLC v. United Healthcare

40 Id. at 3–4.

41 Id. at 4.

42 See R. Doc. No. 105-3.

Services, Inc., 345 F. Supp. 3d 712, 729–30 (M.D. La. 2018) (discussing patients

appointing a hospital to act as their authorized representative). Therefore, Theriot

was not acting as an authorized representative when she engaged the Javier Firm to

request documents on her behalf.

2. Waiver

Theriot next argues that defendants waived their argument that Theriot had

no authority to retain the Javier Firm as counsel for the Estate on November 1, 2017

because defendants did not raise the argument sooner.43 Theriot cites Pitts By and

Through Pitts v. American Sec. Life Ins. Co., 931 F.2d 351, 357 (5th Cir. 1991) and

Rhorer v. Raytheon Engineers & Constructors, Inc., 181 F.3d 634, 645 (5th Cir. 1999),

abrogated on other grounds by CIGNA Corp. v. Amara, 563 U.S. 421 (2011) in support

of her argument.

The Fifth Circuit has recognized the doctrine of waiver in the ERISA context,

and it defines waiver as “the voluntary or intentional relinquishment of a known

right.” Pitts, 931 F.2d at 357. There is “a clear dividing line as to when waiver claims

are available [in the ERISA context].” Price v. Metropolitan Life Ins. Co., No. 04-338,

2008 WL 4187944, at *3 (N.D. Miss. Sept. 8, 2008). “The key element is that waiver

must be intentional.” Id. “Generally waiver requires proof of the defendant’s

knowledge, actual or constructive, of the existence of his rights or of all material

43 R. Doc. No. 85, at 4–5. Theriot argues that defendants were required under 29

C.F.R. § 2560.503-1(g)(1)(iii) to notify her of their position that Theriot was not acting

on behalf of the Estate immediately upon receiving the 2017 request. However, 29

C.F.R. § 2560.503-1(g)(1)(iii) is entirely inapplicable because it regulates the manner

and content of the notification of benefit determinations, not requests for documents.

facts.” Lamb v. Provident Ins. Co., No. 2:93CV40, 1994 WL 1890828 at *4 (N.D. Miss.

Oct. 4, 1994).

The Fifth Circuit has held that administrators waive their rights to enforce

policy provisions when they have full knowledge that a provision is being breached

but allow the breach to continue. For example, in Pitts, the defendant’s policy

required a minimum of ten participating employees in the group insurance plan. 931

F.2d at 353. The defendant continued to accept insurance premiums and cash the

plaintiff’s premium checks “for five months after learning beyond all doubt that [the

plaintiff] was the only employee remaining on the policy.” Id. at 357. The Fifth Circuit

held that, therefore, the defendant had waived its right to assert the policy violation

as a defense to liability under the policy. Id.

Similarly, in Rhorer, the Fifth Circuit held that there was a fact issue

precluding summary judgment as to whether the plan had waived its right to assert

the defense that the employee lacked coverage because he was not actively working.

181 F.3d at 645. The plan knew that the employee was severely ill and had stopped

working, but still allowed him to enroll in optional life insurance, accepted his

premiums, and failed to return those premiums for over a year. Id. Rhoher and Pitts

were primarily concerned with the plan administrator’s conduct prior to the

application for benefits, and it was that prior conduct that allowed the inference of

waiver.

In contrast, Theriot takes issue not with defendants’ conduct regarding Ms.

Hamann’s application for her late husband’s benefits or with Ms. Hamann’s

application for lump-sum payment, but rather with defendants not raising their

argument, that Theriot did not have the authority as representative of the Estate to

engage the Javier Firm to request documents on November 1, 2017, immediately

upon receiving the Javier Firm’s letter.44

Unlike the administrators in Pitts and Rhoher, defendants, when they

responded to the 2017 request, did not know “beyond all doubt” or have any reason

to believe for that matter, that the Javier Firm did not properly represent the Estate.

See Pitts, 931 F.2d at 357; Rhoher, 181 F.3d at 645; Lamb, 1994 WL 1890828, at *4.

The Javier Firm’s letter stated that it represented the Estate.45 Moreover, defendants

did not learn, until after they filed their motion for summary judgment, that at the

time Theriot made the 2017 request she had not yet been appointed independent

administrator of the Estate.46

Theriot’s claim of waiver is more analogous to the claim in Schadler v. Anthem

Life Ins. Co., 147 F.3d 388, 396–97 (5th Cir. 1998). The Fifth Circuit held that it was

“unwilling to conclude that the administrator has, by determining that [the plaintiff]

was not covered by the [policy], waived the right to interpret any particular provisions

of the [policy] once it has been shown that [the plaintiff] was in fact covered.” Id. The

Fifth Circuit found that the administrator “advanced a non-frivolous argument that

the [policy] had never been in effect as to [the plaintiff],” and “therefore was not called

upon to make any further benefits determinations or even to interpret the terms of

44 R. Doc. No. 85, at 6.

45 R. Doc. No. 85-7, at 1.

46 R. Doc. No. 105, at 1–2.

the Plan at all in concluding that [the plaintiff] was not covered.” Id. at 396; see also

Swenson v. Lincoln National Life Ins. Co., No. 17-0417, 2018 WL 3028954, at *8–9

(W.D. La. June 18, 2018) (holding that the doctrine of waiver was inapplicable to the

defendant’s allegedly insufficient appeal denial letter because the plaintiff took issue

not with the defendant accepting premiums, but rather with the specific contents of

the letter).

Similarly, here, defendants advanced a non-frivolous argument that the Estate

“did not have standing as a participant or beneficiary under ERISA [when] it

requested information from [defendants]” in their answer to Theriot’s second

amended complaint.47 Defendants only had occasion to inquire as to whether the 2017

request was made by Theriot in her personal capacity or on behalf of the Estate after

this Court held in its order and reasons dismissing four of Theriot’s claims that

Theriot, because she was acting on behalf of the Estate, had standing to bring claims

under ERISA.48

Further, Theriot’s assertion that defendants’ argument is nothing but “newly

conceived procedural deficiencies” is simply incorrect. Defendants stated in their

March 2, 2018 letter to the Javier Firm that they “would like to make clear that Ms.

Theriot and [her brother] are not Participants, Beneficiaries or Survivors within the

meaning of the Plan and as a result the Law.”49 Defendants then stated in their

47 R. Doc. No. 54, at ¶ 4.

48 See R. Doc. No. 51, at 12.

49 R. Doc. No. 10-8, at 1.

January 4, 2019 letter to Theriot’s current counsel50 that the Fund was reserving the

right to assert “that Ms. Theriot and the Estate are not entitled to receive any

documents under ERISA, as they are neither Participants nor Beneficiaries under

the terms of the Plan and because of the law.”51 Defendants again reiterated their

position in their answer to Theriot’s second amended complaint on July 26, 2019.52

The Court finds, therefore, that defendants did not waive their right to assert that

Theriot was not acting on the Estate’s behalf when she requested documents, through

the Javier Firm, on November 1, 2017.

3. Universal Successor

Theriot argues that regardless of when she was appointed administrator of the

Estate, “Louisiana succession law allows Theriot, as Audry Hamann’s daughter and

heir to her intestate succession,” to “represent Mrs. Hamann to enforce her rights

immediately upon her death” as Ms. Hamann’s universal successor.53 Theriot argues

that she exercised her ability to represent her mother’s rights immediately upon her

death by engaging the Javier Firm to enforce the payment of the lump-sum benefit

to which Ms. Hamann was allegedly entitled and, therefore, the Javier Firm

requested documents on November 1, 2017 on behalf of the Estate.54

In response, defendants argue that only a succession representative, not a

universal successor, may represent an estate in pursuing its claim for benefits under

50 Theriot retained new counsel after the Javier Firm made the 2017 request.

51 R. Doc. No. 20-5, at 3.

52 See R. Doc. No. 54, at ¶ 4.

53 R. Doc. No. 99, at 3.

54 R. Doc. No. 99, at 3.

ERISA and, therefore, Theriot did not have standing to pursue Ms. Hamann’s estate’s

claim for benefits and request documents until November 28, 2018, when she was

appointed independent administrator of the Estate. The question is, therefore,

whether Theriot could exercise the rights of the Estate to pursue a claim for benefits

under ERISA immediately upon Ms. Hamann’s death as universal successor, or

whether she only gained this right once she was appointed independent

administrator of the Estate.55

“The universal successor represents the person of the deceased, and succeeds

to all his rights and charges.” La. Civ. Code art. 3506. Pursuant to Louisiana Civil

Code Article 935, “[i]mmediately at the death of the decedent, universal successors

acquire ownership of the estate,” and “[p]rior to the qualification of a succession

representative only a universal successor may represent the decedent with respect to

the heritable rights and obligations of the decedent.” Universal successors “may

institute all actions that the decedent could have brought unless the estate is under

administration, in which case the succession representative is the proper party

plaintiff or defendant[.]” Id. Revision Comments (1997) (d). “If a universal successor

exercises his rights of ownership after the qualification of a succession representative,

the effect of that exercise is subordinate to the administration of the estate.” La. Civ.

Code art. 938.

55 The Court notes that Theriot has a brother, Carl Panebiango, who may have also

been a universal successor to the Estate. The Court will not address this potential

issue, however, because defendants do not argue that Theriot was not a proper

universal successor to act on behalf of the Estate.

As universal successor, Theriot had the right to institute all actions that Ms.

Hamann could have brought, such as Ms. Hamann’s claim for benefits under the

pension plan, immediately upon Ms. Hamann’s death. See La. Civ. Code art. 935,

Revision Comments (1997) (d). Theriot was also subsequently appointed independent

administrator of the Estate, so she had the authority to act on behalf of the Estate

with respect to Ms. Hamann’s claim for benefits both prior to and following her

appointment as succession representative. See La. Civ. Code arts. 935, 938.

Defendants argue that because Louisiana Civil Code Article 935 states that

“only a universal successor may represent the decedent with respect to the heritable

rights and obligations of the decedent,” and Ms. Hamann’s claim for benefits under

ERISA is a nonheritable right, Theriot could only bring an action under ERISA and

request documents on behalf of the Estate once she was appointed independent

administrator.56 Confusingly, defendants argue that a nonheritable right is in fact

heritable, but may only be enforced by a succession representative appointed by the

state, rather than by a universal successor.57

Defendants are mistaken for two reasons: first, a claim for benefits is a

heritable right which survives the death of a participant or beneficiary under ERISA

and, second, under Louisiana law an independent administrator does not have the

power to enforce a set of rights that a universal successor otherwise cannot in the

absence of an independent administrator.

56 R. Doc. No. 112, at 4.

57 Id.

In regard to defendants’ first error in reasoning, it is well settled that a claim

for benefits under ERISA survives the death of a plan participant or beneficiary. The

claim for benefits passes to the decedent’s estate and confers derivative standing to

representatives of the estate to sue on the decedent’s behalf, provided that there is a

colorable claim to benefits. James, 766 F. Supp. at 533–34 (finding that a succession

representative could sue derivatively on behalf of the deceased for a claim to benefits

under ERISA); see also Ibson v. Healthcare Services, Inc., 877 F.3d 384, 388 (8th Cir.

2017) (holding that “it is the representative of a deceased participant’s estate that

has standing to sue for breach of ERISA fiduciary duties” and, therefore, a legal

representative of the decedent’s estate must bring the claim for benefits, not the

decedent’s heir in her personal capacity) (citations omitted); Harrow v. Prudential

Ins. Co. of America, 279 F.3d 244, 248 (3d Cir. 2002) (“Because Congress intended

ERISA to be remedial, ERISA actions survive death.” (citing 29 U.S.C. § 1001(b);

Duchow v. N.Y. State Teamsters Conference Pension & Retirement Fund, 691 F.2d 74,

78 (2d Cir. 1982)).58

In regard to defendants’ second error in reasoning, defendants fail to cite any

authority which states that a claim for benefits under ERISA and the accompanying

58 Defendants argue that Theriot did not have the right to request documents on

behalf of the Estate immediately upon Ms. Hamann’s death, because ERISA’s anti-

alienation provides that “[e]ach pension plan shall provide that benefits provided

under the plan may not be assigned or alienated.” 29 U.S.C. § 1056(d)(1) (emphasis

added); see Guidry v. Sheetmetal, 493 U.S. 365, 371–72 (1990) (holding that pension

benefits are not subject to assignment or garnishment). However, Ms. Hamman’s

death did not assign or alienate Ms. Hamann’s benefits under the pension plan, but

rather her claim to benefits succeeded to her estate immediately upon her death.

collateral right to request documents to pursue the claim do not pass to a decedent’s

universal successor, but rather only to the independent administrator of the estate.59

All of the cases cited by defendants address whether the plaintiff could sue in his or

her personal capacity, rather than on behalf of the decedent’s estate.60 That is not at

issue here. Theriot is not arguing that she had standing in her personal capacity to

request documents, but rather that she had standing as universal successor to

request documents, on behalf of the Estate.

Therefore, Ms. Hamann’s right as a beneficiary under the Plan to request

documents under 29 U.S.C. § 1024(b)(4) to pursue a claim for benefits passed to her

estate immediately upon her death and, Theriot, as universal successor, had the

authority to exercise this right to request documents on behalf of the Estate on

November 1, 2017.61

59 The Court ordered defendants to submit additional briefing on this issue. R. Doc.

No. 111. While defendants’ supplemental memorandum sheds light on their

argument, it does not provide any authority that supports their position. See R. Doc.

No. 112.

60 See R. Doc. No. 112, at 3.

61 Defendants argue that Theriot cannot meet her burden of proof as to whether the

Javier Firm represented the Estate and, therefore, had standing to request

documents on November 1, 2017, because Theriot failed to produce her retainer

agreement with the Javier Firm. R. Doc. No. 68-4, at 5–6. Defendants reason that

this retainer agreement is the only way to determine whether the Javier Firm

represented the Estate or just Theriot in her personal capacity, and without it, the

Court cannot conclude that the Javier Firm was requesting documents on behalf of

the Estate. Id. The Javier Firm’s letter to defendants confirms that it represented, or

at least purported to represent, “the interests of the estate of Ms. Audry Hamann,

and also Debbie Theriot and [Theriot’s brother].” R. Doc. No. 85-7, at 1. Whether the

Javier Firm technically represented the Estate or solely Theriot in her personal

capacity is ultimately irrelevant, however, as defendants fully complied with the 2017

request for documents, as explained herein.

4. Tolling of Limitations

Finally, Theriot argues that “consideration of [p]laintiff’s claims should have

been tolled until such time as a succession representative qualified or until such time

as [d]efendants produced the plan documents giving rise to the Audry Hamann

claim.”62 She further argues, “[a]ssuming arguendo that the Court accepts

[d]efendants’ argument, the running of the time limitations for administrative review

should have been equitably tolled until Audry Hamann [sic] officially became estate

administrator.”63

Theriot’s argument is inapposite and completely irrelevant as to whether she

had authority to represent the Estate on November 1, 2017 and, therefore, had

standing to make the 2017 request. There was no time restriction on when Theriot

could request documents once appointed the independent administrator of the Estate,

because neither the 2017 Plan nor 29 U.S.C. § 1024(b)(4) impose a time limit on

requesting documents.64 Therefore, Theriot’s argument is immaterial to the Court’s

decision.

62 R. Doc. No. 106, at 2.

63 Id.

64 Theriot cites Branch v. G. Bernd Co., 955 F.2d 1574, 1582 (11th Cir. 1992) in

support. Branch is inapposite to the issue here because in Branch, there was a time

limit that had expired which the court could toll to allow the administrator of the

estate to elect continuing coverage for the deceased beneficiary. See id.

5. Defendants did not violate 29 U.S.C. § 1024(b)(4)

Theriot, through the Javier Firm, had standing to request documents pursuant

to 29 U.S.C. § 1024(b)(4) on November 1, 2017, because she was acting on behalf of

the Estate. The next issue is whether defendants complied with Theriot’s 2017

request. The Javier Firm’s letter requested:

[A] complete copy of the plan agreement including [Ms. Hamann’s] application

and all other correspondence from her to the Fund. I am particularly interested

in reviewing any language which states that once a beneficiary elects a lump

sum payment, irrespective of the fact that the Fund may process this request

at its leisure, once it processes same and elects to make payment, the

beneficiary must be alive.65

Defendants sent the Javier Firm a copy of the plan agreement current through

2017 (the “2017 Plan”) in response to the request.66 Theriot argues that defendants

should have known she was also requesting the 1990 plan document, summary plan

description, and collective bargaining agreement.67

A claimant does not have to request a document under § 1024(b)(4) using its

precise name, but the request must be “sufficiently clear” to provide “notice to the

plan administrator of the information” the claimant desires. Van Bael, 2019 WL

160183, at *3; see also Center for Restorative Breast Surgery, 2015 WL 4394034, at

*17. However, Theriot’s request did not “provide clear notice to [defendants]” such

that a reasonable plan administrator would have known Theriot was also requesting

the summary plan description, 1990 plan document, and collective bargaining

65 Id. at 2.

66 R. Doc. No. 68-8, at 2.

67 R. Doc. No. 85, at 10–14.

agreement. See Van Bael, 2019 WL 160183, at *3; Center for Restorative Breast

Surgery, 2015 WL 4394034, at *17. The Javier Firm’s letter requested a complete

copy of the plan agreement and defendants fulfilled this request by producing the

2017 Plan.68

C. 2018 Requests

On November 2, 2018, Theriot’s current counsel sent a letter69 to defendants

requesting:

“[R]ecords evidencing adoption of the plan and any amendments in force as of

the date of Mr. Hamann’s death in December 2016, as well as those in effect

on the date of Audrey [sic] Hamann’s request for payment of the survivor

benefit in a lump sum. To be complete, please forward to us at your earliest

convenience, all documents regarding the pension rights of Robert A. Hamann,

including the following:

• a complete copy of the Plan Document, applicable amendments and all

records evidencing adoption of same, in effect as of December 30, 2016 and

March 1, 2017

• the Trust agreement (if any)

• any Fidelity bond issued to The Building Trades United Pension Trust

Fund

• any Errors and Omissions or Fiduciary Policy issued to The Building

Trades United Pension Trust Fund in force as of the dates listed above

• a Certificate of Coverage evidencing the benefits to which Mr. and Mrs.

Hamann were entitled as of the dates listed above

• the Summary Plan Description in effect as of the above dates

• Forms 5500 and attachments, including supporting documentation, for the

years 2016 and 2017

• Summary Annual Reports (if required for the Plan) for the years 2016 and

2017

• List of all contacts related to the plan’s operations and copies of the same,

including a copy of any signed contract between the employer and the third

party

68 See R. Doc. No. 106, at 2; R. Doc. No. 68-8, at 2. Theriot does not argue that

defendants did not produce or should have produced correspondences between Ms.

Hamann and the Fund.

69 R. Doc. No. 20-3.

• Open enrollment materials, including documents describing cost

responsibilities for the employer and employees

• Mrs. Hamann’s applications as survivor beneficiary for payment and her

“change form” election to receive the lump sum payment, together with any

correspondence or emails or other documents related to it

• Any other administrative records evidencing the handling of Ms. Hamann’s

claims

• All documents relevant to Mrs. Hamann’s claims for pension benefits

arising out of the death of her husband Robert Hamann, as defined by 29

C.F.R. § 2560.503-1

• Any contracts for claims administration existing between The Fund as plan

sponsor and any third party

• Any contracts for preparation of the summary plan description or plan

contract documents with any third party

After not hearing from defendants, Theriot’s counsel sent another letter on

December 19, 2018, requesting all of the same documents.70 In response to Theriot’s

second letter, defendants produced the 2017 Plan, Trust Agreement, summary plan

description in effect on the dates listed, and forms 5500 and attachments for years

2016–17.71

Defendants argue that the Estate did not have standing to make the 2018

requests because the “Estate had failed to exhaust available administrative

procedures and was barred from challenging [defendants’] benefit denial decision

long before November 2, 2018.”72 Defendants argue that because this Court held in

its order and reasons granting defendants’ motion to dismiss that the March 2, 2018

benefit denial letter substantially complied with ERISA, the Estate could not have

had a colorable claim for benefits on November 2, 2018, when the time to appeal the

70 R. Doc. No. 20-4.

71 R. Doc. No. 68-8, at 2; R. Doc. No. 85-2, at 13.

72 R. Doc. No. 68-4, at 7.

adverse benefits determination had already expired.73 Therefore, defendants argue,

Theriot, acting on behalf of the Estate, did not have standing to request documents

pursuant to § 1024(b)(4) in November and December of 2018.

Theriot argues that defendants failed to produce, in violation of § 1024(b)(4):

(1) the 1990 Plan document; (2) the collective bargaining agreement; (3) contracts for

claims administration; (4) the fidelity bond; and (5) any errors and omissions policy

or fiduciary policy.74 Theriot further argues that defendants’ refusal to provide these

documents was in bad faith and prejudiced Theriot and, therefore, the Court should

award penalties under 29 U.S.C. § 1132(c).75 It is unnecessary to resolve this issue

because, even assuming Theriot had standing to request documents on behalf of the

Estate in November and December of 2018, defendants complied with § 1024(b)(4).

Defendants may only be subject to statutory penalties for those documents that

were clearly requested and whose production 29 U.S.C. § 1024(b)(4) requires.76 See

Van Bael, 2019 WL 160183, at *3. These documents include “the latest updated

73 Id. at 10.

74 R. Doc. No. 85, at 14–18. In her response to defendants’ interrogatories, Theriot

lists additional documents that she claims should have been produced in response to

the 2018 requests. R. Doc. No. 68-8, at 2. However, because Theriot does not argue in

her opposition to defendants’ motion for summary judgment that defendants should

have produced these additional documents, the Court will not address them.

75 R. Doc. No. 85, at 18–22.

76 Although the Fifth Circuit has not squarely decided the issue, Theriot does not

dispute that only violations of the statute, 29 U.S.C. § 1024(b)(4), can give rise to

statutory penalties. See Elite Ctr. for Minimally Invasive Surgery, LLC v. Health Care

Service Co., 221 F. Supp. 3d 853, 859 (S.D. Tex. 2016) (“While the Fifth Circuit has

not yet considered the precise issue . . . the First, Second, Third, Sixth, Seventh,

Eight, Ninth, and Tenth Circuits have all agreed that the failure to follow [ERISA

regulations] does not give rise to a statutory penalty claim under [ERISA] § 502(c)

[codified at 29 U.S.C. § 1132(c)].”) (collecting cases)).

summary plan description . . . the latest annual report, any terminal report, the

bargaining agreement, trust agreement, contract, or other instruments under which

the plan is established or operated.” 29 U.S.C. § 1024(b)(4). The Court will address

each of the documents Theriot claims defendants should have produced in turn.

1. 1990 Plan Document and Collective Bargaining Agreement

Theriot argues that defendants should have produced the 1990 plan document

because it “governed Mr. Hamann’s non-forfeitable rights at the time of his

retirement[.]”77 Theriot also argues that defendants should have produced the

collective bargaining agreement because “29 U.S.C. § 1024(b)(4) lists the collective

bargaining agreement as a document that plan administrators must produce upon

request.”78

As previously discussed, a claimant does not have to request a document under

§ 1024(b)(4) using its precise name, but the request must be “sufficiently clear” to

provide “notice to the plan administrator of the information” the claimant desires.

Van Bael, 2019 WL 160183, at *3. Theriot’s request falls short of this notice

requirement. Theriot does not even identify which provisions in her requests would

include the 1990 plan document and collective bargaining agreement. Therefore, the

Court finds that defendants did not violate § 1024(b)(4) by failing to produce the 1990

plan document or collective bargaining agreement.

77 R. Doc. No. 85, at 14.

78 R. Doc. No. 85, at 13.

Even if Theriot’s request for “a complete copy of the Plan Document, applicable

amendments and all records evidencing adoption of same, in effect as of December

30, 2016 and as of March 1, 2017” could be construed as requesting the 1990 plan

document, Theriot still would not have been entitled to it under § 1024(b)(4).

Theriot cites Hartman v. Dana Holding Corp., 978 F. Supp. 2d 957, 968 (N.D.

Ind. 2013), which held that an ERISA claimant may be entitled to outdated plan

documents “if they contain information necessary for her to understand and assert

her rights under the plan.” The court in that case reasoned that a claimant may be

entitled to outdated plan documents when “a claims administrator expressly relied

on such documents because, under those circumstances, the participant would need

to ‘have access to [the outdated documents] in order to understand what the claim

administrator [was] doing and to effectively assert his rights under the plan.’” Id.

(quoting Mondry v. American Family Mut. Ins. Co., 557 F.3d 781, 800 (7th Cir. 2009)).

Here, defendants relied upon language in the current plan agreement, the 2017

Plan, to deny Theriot’s claim for benefits79 and, therefore, Theriot did not need access

to the 1990 plan document to “understand what the claim administrator [was] doing

and to effectively assert [her] rights under the plan.” Id. Further, defendants

essentially build upon old plan documents when creating new plan documents, so all

79 R. Doc. No. 68-4, at 12. Defendants cite R. Doc. No. 10-8, defendants’ letter dated

March 2, 2018 to Theriot’s counsel, in support of their argument that they used the

2017 Plan and not the 1990 plan document when administering Theriot’s claim. The

letter refers to the provisions of “the Plan” that defendants relied on to deny Theriot’s

claim. Id. Theriot does not dispute that “the Plan” referenced in the March 2, 2018

letter was referring to the 2017 Plan.

previous provisions are incorporated into the current plan document. According to

Michael Gantert, director of the Fund, “when the . . . Fund adopts an amendment,

the previous version of the Plan language . . . still appl[ies] to participants who retired

before the effective date of the amendment. Therefore, previous versions of the

[Plan’s] language [are] retained in the . . . Fund’s [current] plan document with an

added note on the language’s effective date(s)[.]”80 Theriot, therefore, had all of the

relevant provisions that would have been in effect in 1990 when Mr. Hamann retired

because she had a copy of the 2017 Plan. The Court finds that § 1024(b)(4) would not

have required defendants to produce the 1990 plan document, even if Theriot had

clearly requested it.

2. Contracts for Claims Administration

Theriot clearly requested in her 2018 requests “[a]ny contracts for claim

administration existing between [t]he Fund as plan sponsor and any third party.”81

Contracts for claim administration are not specifically enumerated in 29 U.S.C. §

1024(b)(4) and, therefore, defendants were only required to produce the contracts if

the contracts were “other instruments under which the plan is established or

operated.” See 29 U.S.C. § 1024(b)(4).

Theriot argues that contracts for claims administration are other instruments

under which the plan is operated because “[a]ny contract by which a person or party

involves itself in the administration of claims is a document that governs the

80 R. Doc. No. 68-5, at ¶ 4.

81 R. Doc. No. 20-3, at 2; R. Doc. No. 20-4, at 2.

operation of the Fund, and may result in that third party being considered a fiduciary

under the plan.”82

Defendants argue in response that no contracts for claims administration exist

because the Fund is self-administered by its own employees.83 Theriot does not allege

or have any evidence that Gantert’s declaration that no claims administration

contracts exist is false. Therefore, because the summary judgment evidence shows

that no contracts for claims administration existed, defendants had no obligation to

produce them.84

3. Fidelity Bond

Theriot clearly requested in her 2018 requests “any Fidelity bond issued to [the

Fund].”85 Fidelity bonds are not specifically enumerated in § 1024(b)(4), and

therefore, again, defendants were only required to produce the bond if the bond was

an “other instrument[] under which the plan is established or operated.” See 29 U.S.C.

§ 1024(b)(4); see Murphy v. Verizon Communications, Inc., 587 F. App’x 140, 144 (5th

Cir. 2014) (agreeing with the majority of circuits that “have construed Section

82 R. Doc. No. 85, at 16.

83 R. Doc. No. 68-4, at 14 (citing R. Doc. No. 68-5, at ¶ 15).

84 Theriot seems to conflate defendants’ arguments that they were not required to

produce “contracts related to the plan’s operations including a copy of any signed

contract between the employer and the third party” with defendants’ arguments as

to why contracts for claims administration were not produced. See R. Doc. No. 62-3,

at 15–17; R. Doc. No. 85, at 16. However, even liberally construing Theriot’s

“contracts for claims administration” argument as also including “contracts related

to the plan’s operations including a copy of any signed contract between the employer

and the third party,” Theriot is not entitled to statutory penalties, as explained

herein.

85 R. Doc. No. 20-3, at 1; R. Doc. No. 20-4, at 1.

[1024(b)(4)]’s catch-all provision narrowly so as to apply only to formal legal

documents that govern a plan”).

Theriot cites 29 U.S.C. § 1112, which requires every fiduciary of an employee

benefit plan and every person who handles funds or other property of an employee

benefit plan to be bonded, and concludes that “[b]ecause this document is a

requirement for [d]efendants to operate as plan fiduciaries, it is an instrument under

which the plan is established or operated that [d]efendants must produce.”86

Defendants do not address Theriot’s request for “any Fidelity bond” in their

motion for summary judgment, but asserted in their letter to Theriot’s counsel on

January 4, 2019 that any fidelity bond issued to the fund is not an instrument under

which the Fund is established or operated, and therefore outside the scope of 29

U.S.C. § 1024(b)(4).87

The Fourth Circuit, which also agrees with the majority of circuits and

construes § 1024(b)(4)’s catch-all provision narrowly, was confronted with this same

question in Faircloth v. Lundy Packing Co., 91 F.3d 648, 654 (4th Cir. 1996). The

court held that § 1024(b)(4) did not encompass the bonding policy insuring the plan

against fiduciary misconduct because “the bond policy does nothing to set up or

manage the [plan].”88 Id. The Court agrees. However, even if § 1024(b)(4)

86 R. Doc. No. 85, at 17.

87 R. Doc. No. 68-5, at 10.

88 Judge Michael dissented on this point, reasoning that because ERISA requires plan

fiduciaries to be bonded and the plan cannot operate without fiduciaries, the plan

cannot operate without some sort of bonding policy. See Faircloth, 91 F.3d at 664

(Michael, J., dissenting). Therefore, Judge Michael concluded, the bonding policy is

encompassed any fidelity bond issued to the Fund, Theriot would still not be entitled

to penalties under § 1132(c), as discussed herein.

4. Any Errors and Omissions Policy or Fiduciary Policy

Theriot clearly requested in her 2018 requests “any Errors and Omissions or

Fiduciary Policy issued to [the Fund] in force as of the dates listed above.”89 Errors

and omissions and/or fiduciary policies are not specifically enumerated in § 1024(b)(4)

and, therefore, defendants were only required to produce such policies if they were

“other instruments under which the plan is established or operated.” See 29 U.S.C. §

1024(b)(4).

Theriot argues that defendants should have produced any errors and omissions

or fiduciary policies issued to the Fund because “these are formal legal documents

that govern the plan’s operations[.]”90 Defendants argue in response that “any

contracts that merely address whether it is an individual trustee or an insurance

company that pays when a trustee breaches his or her fiduciary duty to the Pension

Fund, such as the Pension Fund’s fiduciary policy, do not govern the Pension Fund’s

operations.”91

29 U.S.C. § 1110 permits “a plan [to] purchas[e] insurance for its fiduciaries or

for itself to cover liability or losses occurring by reason of the act or omission of a

fiduciary, if such insurance permits recourse by the insurer against the fiduciary in

“an instrument under which the Plan is ‘operated’ because the policy is indispensable

to the operation of the plan.” Id.

89 R. Doc. No. 20-3, at 1; R. Doc. No. 20-4, at 1.

90 R. Doc. No. 85, at 18.

91 R. Doc. No. 68-4, at 17.

the case of a breach of a fiduciary obligation by such fiduciary[.]” Theriot provides no

support for the claim that errors and omissions or fiduciary policies are “other

instruments under which the plan is established or operated,” and the Court finds no

support for the argument that § 1024(b)(4) encompasses such policies. Therefore,

defendants did not violate § 1024(b)(4) by failing to produce any errors and omissions

or fiduciary policies issued to the Fund.

D. Statutory Penalties

Even if Theriot was entitled to some or all of her requested documents

pursuant to § 1024(b)(4), the Court would still not exercise its discretion to award

statutory penalties. Any administrator who fails or refuses to comply with §1024(b)(4)

may, within the court’s discretion, be held personally liable to the requesting party

for up to $100 for each day after the date of refusal. § 1132(c)(1)(B). See Kidder v.

Aetna Life Ins. Co., No. 14-665, 2016 WL 1241549, at *9 (W.D. Tex. Mar. 28, 2016)

(citing Paris v. Profit Sharing Plan for Emp. of Howard B. Wolf Inc., 637 F.2d 357,

362 (5th Cir. 1981)) (“The imposition of a statutory penalty [for violations of §

1024(b)(4)] is within the discretion of the district court.”). “As a penalty provision

section 1132(c) must be strictly construed.” Fisher, 895 F.2d at 1077 (citing Ivan Allen

Co. v. United States, 422 U.S. 617, 626–27 (1975)).

Although not statutorily required, courts in the Fifth Circuit typically do not

award penalties under 29 U.S.C. § 1132(c) unless the claimant shows that the

administrator acted in bad faith by withholding the documents or that the claimant

was prejudiced in pursuing her claim by not having the requested documents. See

Godwin v. Sun Life Assur. Co. of Canada, 980 F.2d 323, 327 (5th Cir. 1992) (holding

that “prejudice is one factor a district court may consider in exercising its discretion”);

Keaton v. Sedgwick Claims Management Services, Inc., No. 17-223, 2018 WL

2027747, at *10 (W.D. Tex. Apr. 30, 2018) (listing bad faith by the administrator and

the existence of any prejudice to the plan participant as factors courts consider when

deciding whether to award statutory penalties); Kidder, 2016 WL 1241549, at *10

(“Courts in the Fifth Circuit regularly deny a request for penalty damages when the

plaintiff does not allege bad faith by the defendant or show that it has been somehow

prejudiced.”); Mouton v. Mobil, No. 00-1403, 2001 WL 963957, at *11 (S.D. Tex. June

18, 2001) (denying a request for statutory penalties because the administrator’s

failure to send requested documents was inadvertent and not in bad faith).

In Kidder, the claimant specifically asked for a document enumerated in §

1024(b)(4), and the administrator failed to produce it. 2016 WL 1241549, at *9.

However, because the request was sent more than a year after the claimant’s deadline

to file a second appeal had expired, and the claimant alleged no other facts that

indicated the existence of prejudice to him in preparing for the lawsuit or bad faith

on the part of the administrator, the court declined to award statutory penalties. Id.

at *10. The court also found it relevant that the document requested would not have

offered the claimant a more detailed explanation as to why his benefits were denied.

Id.

Similarly, here, Theriot requested documents well after her deadline to appeal

had passed. Theriot had sixty days from March 2, 2018, to appeal the adverse benefit

determination, but did not request the documents until November 2, 2018.92 The

documents she claims defendants should have produced would not have offered her a

more detailed explanation as to why her benefits were denied, as she received a

substantially compliant benefit denial letter on March 2, 2018 that cited the 2017

Plan provisions defendants relied upon in making their decision and the reasoning

for such decision.93

Furthermore, Theriot fails to provide any evidence of bad faith on the part of

defendants beyond mere conclusory allegations.94 See Keaton, 2018 WL 2027747, at

*11 (holding that the claimant did not show that the administrator acted in bad faith

because the claimant failed to provide any evidence and merely claimed that the

administrator’s failure to provide documents sooner showed a “reckless, if not

deliberate indifference to its responsibilities”).

92 R. Doc. No. 20-3; see R. Doc. No. 51, at 23, 29.

93 R. Doc. No. 10-8; see R. Doc. No. 51, at 25–26. Theriot argues at great length as to

why defendants should have produced the collective bargaining agreement. See R.

Doc. No. 85, at 20–22. However, as discussed previously, Theriot never clearly

requested the collective bargaining agreement in her 2018 requests.

94 For example, Theriot argues, without evidence in support, that “[d]efendants have

purposely delayed producing, or even indicating the existence of, crucial documents

until after [p]laintiff could use them to support her claims. Therefore, [d]efendants

acted in bad faith in failing to produce documents required under § 1024(b)(4)[.]” R.

Doc. No. 85, at 19.

IV.

For the foregoing reasons,

IT IS ORDERED that the motion for summary judgment is GRANTED and

that count III of Theriot’s second amended complaint against the Fund and Trustees

is DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, November 4, 2019.

ANCE/M. AFRICK

UNITED STATES DISTRICT JUDGE

35