Respondents Brief — Brenda Olivar, et al., Petitioners v. Public Service Employee Credit Union Long Term Disability Plan, et al.

No. 17-1543

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------BRENDA OLIVAR,

Petitioner,

v.

PUBLIC SERVICE EMPLOYEE CREDIT

UNION LONG TERM DISABILITY PLAN,

-----------------------------------------------------------------CAROLINE BURTON,

Respondent.

Petitioner,

v.

COLORADO ACCESS A/K/A COLORADO

ACCESS LONG TERM DISABILITY PLAN,

Respondent.

-----------------------------------------------------------------On Petition for a Writ of Certiorari

to the Colorado Supreme Court

-----------------------------------------------------------------RESPONDENTS’ BRIEF IN OPPOSITION

-----------------------------------------------------------------MICHAEL S. BEAVER

HOLLAND & HART, LLP

6380 South Fiddlers Green Circle,

Suite 500

Greenwood Village, CO 80111

303-290-1600

mbeaver@hollandhart.com

Counsel of Record

MARCY G. GLENN

HOLLAND & HART, LLP

555 17th Street, Suite 2600

Denver, CO 80202

303-295-8000

mglenn@hollandhart.com

Counsel for Respondents

July 25, 2018

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

The questions presented are:

1. ERISA provides for an award of benefits only according to the “terms of the plan.” 29 U.S.C. § 1132(a)(1)(B).

Where a plan consists of nothing more than a long-term

disability insurance policy purchased by the sponsoring employer, and the plan’s terms provide that only

the insurer will determine eligibility and pay benefits,

can the plan be liable in a suit for benefits under 29

U.S.C. § 1132(a)(1)(B)?

2. ERISA permits substitute service of process

on the Secretary of the Department of Labor only when

the plan has not designated an “individual” for service.

29 U.S.C. § 1132(d)(1). In light of the fact that ERISA

expressly permits a plan to name an entity as the

plan’s agent for service, that the dictionary definition

of “individual” includes both natural persons and inanimate things, and that Congress has used the word “individual” to refer to other than natural persons in

ERISA and other statutes, does the word “individual”

in Section 1132(d)(1) refer to both natural persons and

entities designated as agents for service?

ii

RULE 29.6 DISCLOSURE STATEMENT

Pursuant to this Court’s Rule 29.6, each of the

Respondents, Public Service Employee Credit Union

Long Term Disability Plan and Colorado Access a/k/a

Colorado Access Long Term Disability Plan, states that

it has no parent corporations, and no publicly held corporation owns 10% or more of its stock.

iii

TABLE OF CONTENTS

Page

INTRODUCTION ...................................................

1

STATEMENT..........................................................

3

I.

Statutory Framework ..................................

3

II. Proceedings Below .......................................

5

A. District Court Proceedings ....................

6

B. Colorado Court of Appeals Decisions ....

8

C. Colorado Supreme Court Decision ........

9

REASONS FOR DENYING THE PETITION .......

10

I. Plan Liability Issue......................................

10

A. The Colorado Supreme Court’s Holding

Is Correct ............................................... 10

B. The Claimed Conflict Does Not Warrant

Certiorari Review .................................. 14

II.

Service-on-Secretary Issue ..........................

21

A. The Colorado Supreme Court’s Holding

Is Correct ............................................... 21

B. There Is No Conflict ..............................

26

These Cases Are a Poor Vehicle for Review...

26

CONCLUSION .......................................................

28

III.

iv

TABLE OF AUTHORITIES

Page

CASES

Bigley v. Ciber, Inc. Long Term Disability Coverage, 570 Fed. App’x 756 (10th Cir. 2014) ................27

Brant v. Principal Life & Disability Ins. Co., 6

Fed. App’x 533 (8th Cir. 2001).................................11

Brown v. J.B. Hunt Transport Servs., Inc., 586

F.3d 1079 (8th Cir. 2009) .........................................15

Budget Serv. Co. v. Better Homes of Va., Inc., 804

F.2d 289 (4th Cir. 1986) ...........................................25

Burton v. Colorado Access, 2015 COA 111 (Colo.

App. Aug. 13, 2015) ...................................................8

Cave v. Group Long Term Disability of Convergys Corp., No. 07-CV-6981 (Denver Dist. Ct.

March 12, 2009).......................................................27

Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506 (2d Cir. 2002)..... 17, 18, 19, 20

Clinton v. City of New York, 524 U.S. 417 (1998) .... 23, 25

Cobler v. The Am. Gen. Long-Term Disability

Plan for Employees, Case No. 07-CV-12520

(Denver Dist. Ct. Oct. 25, 2010) ..............................27

Consol. Edison of New York, Inc. v. Pataki, 292

F.3d 338 (2d Cir.), cert. denied, 537 U.S. 1045

(2002) .......................................................................23

Cox v. Allin Corp. Plan, 2013 WL 1832647 (N.D.

Cal. May 1, 2013) ....................................................12

Crocco v. Xerox Corp., 137 F.3d 105 (2d Cir. 1998) .......19

v

TABLE OF AUTHORITIES – Continued

Page

Curtiss-Wright Corp. v. Schoonejongen, 514 U.S.

73 (1995) ....................................................................4

Cyr v. Reliance Standard Life Ins. Co., 642 F.3d

1202 (9th Cir. 2011) (en banc) ..................... 11, 16, 17

Daniel v. Eaton Corp., 839 F.2d 263 (6th Cir.),

cert. denied, 488 U.S. 826 (1988) .............................12

Echague v. Metro. Life Ins. Co., 43 F. Supp. 3d

994 (N.D. Cal. 2014) ................................................12

Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101 (1989) ..................................................................4

Geddes v. United Staffing Alliance Employee

Med. Plan, 469 F.3d 919 (10th Cir. 2006) ...............20

Greenwald v. Liberty Life Assur. Co. of Boston,

932 F. Supp. 2d 1018 (D. Neb. 2013) .......................12

Griffin v. Lockheed Martin Corp., 157 F. Supp. 3d

1271 (N.D. Ga. 2015), aff ’d, 647 Fed. App’x 920

(11th Cir. 2016) (per curiam) ............................ 12, 15

Hall v. Lhaco, Inc., 140 F.3d 1190 (8th Cir. 1998) .........11

Hart v. CapGemini US LLC Welfare Benefit

Plan, Case No. 07-CV-6765 (Denver Dist. Ct.

Oct. 2, 2009), aff’d after removal, 547 Fed. App’x

870 (10th Cir. 2013) .................................................27

Heimeshoff v. Hartford Life & Accident Ins. Co.,

571 U.S. 99 (2013) .....................................................4

Hunt v. Hawthorne Assocs., Inc., 119 F.3d 888

(11th Cir. 1997), cert. denied, 523 U.S. 1120

(1998) ................................................................. 11, 18

vi

TABLE OF AUTHORITIES – Continued

Page

In the Matter of Parentage & Support of M.K.M.R.,

199 P.3d 1038 (Wash. App. 2009) ............................24

Kennedy v. Plan Adm’r for DuPont Sav. & Inv.

Plan, 555 U.S. 285 (2009) .................................... 1, 19

Kirby v. Guardian Life Ins. Co. of Am., 148 N.M.

106, 231 P.3d 87 (2010) ...........................................17

Kirby v. TAD Res. Int’l, Inc., 136 N.M. 148, 95

P.3d 1063 (N.M. App. 2004) .....................................17

Larson v. United Healthcare Ins. Co., 723 F.3d

905 (7th Cir. 2013) ........................... 11, 14, 16, 17, 18

Layes v. Mead Corp., 132 F.3d 1246 (8th Cir.

1998) ........................................................................19

Leonelli v. Pennwalt Corp., 887 F.2d 1195 (2d Cir.

1989) ........................................................................19

Milton v. Life Ins. Co. of N. Am., 2012 WL

2357800 (N.D. Ala. June 20, 2012)..........................12

Mohamad v. Palestinian Auth., 566 U.S. 449

(2012) ................................................................. 24, 25

Musmeci v. Schwegmann Giant Super Markets,

Inc., 332 F.3d 339 (5th Cir. 2003), cert. denied,

540 U.S. 1110 (2004)................................................11

Neuma, Inc. v. AMP, Inc., 259 F.3d 864 (7th Cir.

2001) ........................................................................19

New York State Psychiatric Ass’n, Inc. v. UnitedHealth Grp., 798 F.3d 125 (2d Cir. 2015) ................20

vii

TABLE OF AUTHORITIES – Continued

Page

Olivar v. Public Serv. Employee Credit Union

Long Term Disability Plan, 2016 WL 245145

(Colo. App. Jan. 21, 2016) (unpublished) ..................8

Peters v. Hartford Life & Accident Ins. Co., 2007

WL 9697659 (N.D. Ala. Nov. 2, 2007) ......................15

Peters v. Hartford Life & Accident Ins. Co., 579

Fed. App’x 866 (11th Cir. 2014) ..............................15

Portz v. Hartford Life & Accident Ins. Co., 2008

WL 2986272 (D. Neb. July 31, 2008) ......................12

Richmond v. Cont’l Cas. Co., 246 Fed. App’x 399

(8th Cir. 2007).................................................... 12, 15

Sawyer v. Potash Corp. of Saskatchewan, 417

F. Supp. 2d 730 (E.D.N.C. 2006), aff ’d, 223

Fed. App’x 217 (4th Cir. 2007)........................... 12, 16

Slayhi v. High-Tech Inst., Inc., 2007 WL 4284859

(D. Minn. Dec. 3, 2007) ............................................12

United States v. Middleton, 231 F.3d 1207 (9th

Cir. 2000) .................................................................24

Williams v. Unum Life Ins. Co. of Am., 250

F. Supp. 2d 641 (E.D. Va. 2003) ...............................12

Yates v. United States, ___ U.S. ___, 135 S. Ct.

1074 (2015) ..............................................................23

STATUTES & RULES

11 U.S.C. § 362(h)........................................................25

11 U.S.C. § 362(k)(1) ...................................................25

18 U.S.C. § 1030(e)(8) ..................................................24

viii

TABLE OF AUTHORITIES – Continued

Page

29 U.S.C. § 1002(9) ............................................ 4, 21, 26

29 U.S.C. § 1022(b) .................................................. 4, 21

29 U.S.C. § 1102(a)(1) ...................................................3

29 U.S.C. § 1102(b)(4) ...................................................3

29 U.S.C. § 1104(a)(1)(D) ..............................................3

29 U.S.C. § 1132(a)(1)(B) .................................... passim

29 U.S.C. § 1132(d)(1) ......................................... passim

29 U.S.C. § 1132(d)(2) ........................................... 13, 26

Torture Victim Protection Act of 1991, 106 Stat.

73, note following 28 U.S.C. § 1350 .........................24

OTHER AUTHORITY

Individual, The Law Dictionary, available at

http://thelawdictionary.org/individual....................24

1

INTRODUCTION

1. When Congress enacted ERISA, it recognized

that employee benefit plans subject to the statute

would take various forms. ERISA requires every employee benefit plan to be established and maintained

in writing and a claimant is limited to seeking benefits

due under the terms of the written plan document. As

a result, a claim for relief under ERISA’s remedial provision, 29 U.S.C. § 1132(a)(1)(B), “stands or falls by the

terms of the plan.” Kennedy v. Plan Adm’r for DuPont

Sav. & Inv. Plan, 555 U.S. 285, 300-01 (2009). And a

claim for benefits must be filed against the party that

is liable for benefits under the particular plan’s specific

terms.

Consistent with that framework, in these cases

the Colorado Supreme Court held that, because the

plans consist solely of insurance policies and the plans

dictate that the insurers alone decide all eligibility

questions and owe all benefits, the plans themselves

could not be liable in Petitioners’ suits for benefits under Section 1132(a)(1)(B). That ruling has abundant

support in federal decisions because the insurer alone

has the obligation to pay when the plan is exclusively

insurance-funded. Petitioners’ conflict argument is

confused and hyperbolic; only one circuit has taken a

different approach and that decision is an unpersuasive outlier of dubious strength even within that circuit. On the issue of the plans’ liability, the Colorado

Supreme Court reached the correct conclusion and

there is no legitimate conflict. The issue does not warrant this Court’s review.

2

2. ERISA unequivocally permits a plan to designate a “person”—a defined term that includes both

natural persons and entities—as the plan’s agent for

service of process. In Section 1132(d)(1), ERISA also

permits a claimant to serve process on the Secretary

where a plan has not designated an “individual” as its

agent for service. Reading these provisions in context

and concert, the Colorado Supreme Court held that “individual” as used in Section 1132(d)(1) includes both

natural persons and entities. This construction was

correct. Dictionaries and this Court have confirmed

that the word “individual” can refer to entities as well

as natural persons, and that the same word can have

different meanings even within the same statute or

statutory section. Moreover, Petitioners’ construction—limiting “individual” to natural persons—would

lead to an absurd result because it would negate the

ERISA provisions that expressly authorize a plan to

designate an entity as its agent for service of process.

Petitioners have not suggested any conflict of authority on this issue because no court has accepted their

construction of “individual” in Section 1132(d)(1). For

all these reasons, there is no basis for this Court’s review of the service-on-Secretary issue.

3. Finally, the questions presented are unlikely

to arise frequently, if at all, in other ERISA cases and

the instant cases are not an appropriate vehicle for review of those issues. Petitioners’ issues are creatures

of litigation gamesmanship, generated by a single enterprising counsel in an effort to exploit his perception

of loopholes in ERISA. The questions presented have

3

arisen only in cases filed by Petitioners’ attorney, who

regularly files claims against plans that consist only

of insurance policies instead of against the insurers

known to have provided those policies, and who regularly serves the Secretary in lieu of serving plans’ designated entity agents. This Court should not dignify

Petitioners’ counsel’s unsuccessful ploy by granting

the petition.

------------------------------------------------------------------

STATEMENT

I.

Statutory Framework

ERISA requires every employee benefit plan to

be established and maintained pursuant to a “written

instrument.” 29 U.S.C. § 1102(a)(1). That instrument

must “specify the basis on which payments are to be

made.” Id. § 1102(b)(4). Those who administer the plan

are required to act “in accordance with the documents

and instruments governing the plan.” Id. § 1104(a)(1)(D).

ERISA’s remedial provision is based entirely on

the mandated “terms of the plan”:

A civil action may be brought [ ] by a participant or beneficiary . . . to recover benefits due

to him under the terms of his plan, to enforce

his rights under the terms of the plan, or to

clarify his rights to future benefits under the

terms of the plan.

Id. § 1132(a)(1)(B) (emphasis added). The statutory

scheme “is built around reliance on the face of written

4

plan documents,” and its remedial provisions reflect

“the particular importance of enforcing plan terms as

written.” Curtiss-Wright Corp. v. Schoonejongen, 514

U.S. 73, 83 (1995). “This focus on the written terms of

the plan is the linchpin” of ERISA’s remedial scheme.

Heimeshoff v. Hartford Life & Accident Ins. Co., 571

U.S. 99, 108 (2013). Thus, “the terms of the plan” necessarily determine who should pay benefits. Only that

entity can be liable in a claim for benefits.

Under ERISA, a “person” may serve as agent for

service of process, 29 U.S.C. § 1022(b), and a “person”

includes a “corporation.” Id. § 1002(9).

ERISA further provides that a plan, unlike a trust

at common law, “may sue or be sued under this subchapter as an entity.” Id. § 1132(d)(1).1 “Service of summons, subpoena, or other legal process of a court upon

a trustee or an administrator of an employee benefit

plan in his capacity as such shall constitute service

upon the employee benefit plan.” Id.

ERISA permits substitute service on the Secretary

in a narrow circumstance, when “a plan has not designated in the summary plan description of the plan an

individual as agent for service of legal process[.]” Id.

1

The Court has emphasized that ERISA’s “fiduciary responsibility provisions ‘codif[y] and mak[e] applicable to ERISA fiduciaries certain principles developed in the evolution of the law of

trusts.’ ” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110

(1989) (quoting legislative history) (alterations in Firestone).

Thus, to the extent Congress intended to depart from trust law

principles, it needed to do so explicitly, as it did in the statute’s

“sue-and-be-sued” provision.

5

ERISA does not define the word “individual.” When a

claimant undertakes substitute service, “[t]he Secretary, not later than 15 days after receipt of service

under the preceding sentence, shall notify the administrator or any trustee of the plan of receipt of such service.” Id. However, as a practical matter, the Secretary

regularly does not provide the mandated notification,

and did not do so in these cases. Pet. App. 5a, 7a.

II.

Proceedings Below

The petition arises out of claims filed in state

courts in two separate cases for benefits under the

terms of long-term disability (LTD) plans regulated by

ERISA. Petitioners Brenda Olivar and Caroline Burton claimed benefits under, respectively, the Public

Service Employee Credit Union (PSCU) Long Term

Disability Plan and the Colorado Access Long Term

Disability Plan. Their employers, PSCU and Colorado

Access, sponsored and served as administrators for the

respective plans. Pet. App. 36a, 79a.

Each plan consisted solely of an LTD insurance

policy and existed solely as a means through which employees could obtain LTD insurance under that policy;

the only benefits available under each plan were

through its respective insurance policy; and the insurer providing each policy had exclusive authority to

pay and administer all claims. Id. at 36a-37a, 79a-80a.

Standard Insurance Company issued the policy comprising the PSCU plan, id. at 36a; Unum Life Insurance Company of America issued the policy comprising

6

the Colorado Access plan, id. at 79a. The plans did not

participate in making any decisions about claims, and

did not pay any claims. Id. at 36a, 79a-80a.

The PSCU plan, in its summary plan description

(SPD), designated PSCU as the plan administrator

and the plan’s agent for service of process, and also required claimants to notify Standard of claims for legal

process. Id. at 36a. The Colorado Access plan designated Colorado Access as the plan administrator and

the plan’s agent for service of process. Id. at 93a-95a.

Petitioners submitted claims for benefits to Standard and Unum before filing suit. Id. at 4a, 6a, 37a, 63a.

A. District Court Proceedings

After Standard denied Ms. Olivar’s claim for benefits, and after Unum terminated Ms. Burton’s benefits, Petitioners filed separate lawsuits in Colorado

state courts. The same lawyer, their attorney before

this Court, represented them.

Although Petitioners had filed their claims for

benefits with the insurers that funded their respective

plans, they brought their ERISA claims against only

the plans. Petitioners did not name the insurers as defendants or serve them with the complaints. Pet. App.

4a-7a. Although the plans’ SPDs designated Unum and

PSCU as agents for service of process on the plans, Petitioners disregarded those designations, and instead

made substituted service on only the Secretary, ostensibly because the designated agents were not natural

7

persons. Id. The Secretary failed to notify either plan

of service and the plans were unaware of the pendency

of the actions against them until after the entry of default judgments. Id.

Petitioners’ counsel sought default judgments in

ex parte proceedings. He failed to inform the district

court judges that he had disregarded each plan’s designation of its agent for service of process; that each

plan consisted solely of an insurance policy; that the

insurers had sole control over claim determinations

and sole responsibility for the payment of claims under

both plans’ terms; that Petitioners had presented their

claims to the insurance companies funding their respective claims; and that Petitioners had not named

the insurance companies as defendants, served them

with the complaint, or otherwise notified them of the

pendency of the actions. See Pet. App. 85a-89a. As a result, Petitioners obtained default judgments. Id. at

59a-60a, 83a-84a. Petitioners’ counsel then initiated

collection proceedings against the plans’ sponsoring

employers.

Separate district court judges granted both plans’

motions to set aside the judgments based on lack of

valid service. Id. at 52a-58a, 92a-98a. In Burton, the

court found that Petitioners’ attorney had served the

Secretary “as an end run to the obligation that Plaintiff would ordinarily have to obtain service upon—

proper service upon the Defendant entity[,]” and that

“this approach was intentionally taken as an effort in

manipulation to accomplish the goal that was obtained, which was a default judgment and subsequent

8

leverage and . . . bargaining position to obtain some

sort of negotiated settlement[.]” Id. at 97a. In Olivar,

the court was persuaded by the analysis in Burton, as

well as by the fact that three other Denver District

Court judges had set aside default judgments entered

in other cases in which Petitioners’ counsel took the

same approach—suing only the plans and serving the

Secretary instead of the plans’ designated entity

agents. Id. at 56a-57a. The judge expressed her particular chagrin at Petitioners’ “counsel’s failure to disclose . . . the rejection of his service method by my

brethren here at the Denver District Court in cases in

which Plaintiff ’s counsel was asserting the same position on service he asserts here.” Id. at 56a. A different

judge denied Petitioner Olivar’s motion to reconsider

the order setting aside the default judgment. Id. at

43a-51a.

The district courts also granted the plans’ motions

for summary judgment, holding that the plans could

not be liable for benefits because the plans had no decision-making or payment responsibility for claims. Id.

at 35a-42a, 78a-82a.

B. Colorado Court of Appeals Decisions

In unanimous decisions by separate panels, the

court of appeals affirmed in both cases. Burton v. Colorado Access, 2015 COA 111 (Colo. App. Aug. 13, 2015),

Pet. App. 62a-77a; Olivar v. Public Serv. Employee

Credit Union Long Term Disability Plan, 2016 WL

9

245145 (Colo. App. Jan. 21, 2016) (unpublished), Pet.

App. 22a-34a.

C. Colorado Supreme Court Decision

In a single unanimous decision applying de novo

review, the Colorado Supreme Court rejected all of Petitioners’ arguments in their separate appeals. On the

question of the plans’ liability, the court reviewed the

federal authority and concluded that based on the following undisputed facts, in these cases the insurers

are the only obligors and, thus, the claims against the

plans were properly dismissed:

•

The Plans were funded as insurance policies

and had no assets;

•

The only governing instruments were the insurance policies;

•

Only Unum and Standard determined benefits eligibility;

•

Only Unum and Standard were obligated to

pay benefits;

•

And the Plans played no role in handling petitioners’ claims for benefits.

Pet. App. 19a-20a. The court recognized that a plan, including even an insurance-funded plan, could potentially be sued under different circumstances. However,

“just because ERISA allows plans to be sued under

§ 1132(d)(1), doesn’t mean they can be sued when they

have no legal obligation to provide benefits under the

plan’s terms” because “the plans’ terms provide that

10

only the insurers are obligated to pay and to determine

eligibility for benefits.” Id. at 20a-21a (emphasis in

original).

The court further held that the word “individual”

as used in Section 1132(d)(1) “includes a corporation

and service on the Labor Secretary is proper only when

a plan fails to designate either a plan administrator or

some other person as agent for service of process.” Id.

at 3a. The court reached this conclusion to avoid an absurd result—the effective negation of ERISA’s express

provision for appointment of an entity to serve as

agent for service of process—and based on the ordinary

meaning of “individual,” which is not limited to natural

persons. Id. at 13a-14a.

------------------------------------------------------------------

REASONS FOR DENYING THE PETITION

I.

Plan Liability Issue

A. The Colorado Supreme Court’s Holding

Is Correct

ERISA requires a plan to specify who is liable for

benefits, and under what circumstances. Enforcement,

in turn, is made expressly dependent on the “terms of

the plan.” 29 U.S.C. § 1132(a)(1)(B). When the Colorado

Supreme Court held that the plans were improper defendants in these cases, it properly based its analysis

on the terms of the plans in these cases. Because those

terms impose no claim-related obligations on the

plans, they have no potential liability to pay benefits

11

to Petitioners, again in these cases. Therefore, the court

held that the lower state courts properly dismissed the

claims against the plans.

Because enforcement under ERISA’s remedial

provision is dependent on the terms of the plan, “a

cause of action for ‘benefits due’ must be brought

against the party having the obligation to pay. In other

words, the obligor is the proper defendant on an

ERISA claim to recover plan benefits.” Larson v.

United Healthcare Ins. Co., 723 F.3d 905, 913, 916-17

(7th Cir. 2013) (emphasis in original). See also, e.g., Cyr

v. Reliance Standard Life Ins. Co., 642 F.3d 1202, 1207

(9th Cir. 2011) (en banc) (proper defendant must have

“authority to resolve benefit claims” and “responsibility to pay them”); Musmeci v. Schwegmann Giant Super Markets, Inc., 332 F.3d 339, 349 (5th Cir. 2003) (“the

plan beneficiaries can sue the employer when it was

the employer’s decision to deny benefits”), cert. denied,

540 U.S. 1110 (2004); Brant v. Principal Life & Disability Ins. Co., 6 Fed. App’x 533, 535 (8th Cir. 2001)

(“Brant’s employer and its insurance provider were

proper defendants in such an action, because their administrative services agreement gave them discretionary authority to determine eligibility for benefits and

to construe the terms of the plan.”); Hall v. Lhaco, Inc.,

140 F.3d 1190, 1196 (8th Cir. 1998) (an order “requiring

payment of plan benefits must be directed at an entity

capable of providing the relief requested, . . . not the

plan itself ”); Hunt v. Hawthorne Assocs., Inc., 119 F.3d

888, 908 (11th Cir. 1997), cert. denied, 523 U.S. 1120

(1998) (“the payment of benefits from an ERISA plan

12

must issue against a party capable of providing the

relief requested”); Richmond v. Cont’l Cas. Co., 246

Fed. App’x 399, 400 n.2 (8th Cir. 2007) (same); Daniel

v. Eaton Corp., 839 F.2d 263, 266 (6th Cir.), cert. denied, 488 U.S. 826 (1988) (same); Griffin v. Lockheed

Martin Corp., 157 F. Supp. 3d 1271, 1274 (N.D. Ga.

2015) (“An entity is a proper defendant under Section

1132(a)(1)(B) only if it has the discretion to award the

benefits at issue.”), aff ’d, 647 Fed. App’x 920 (11th Cir.

2016) (per curiam).2

In Petitioners’ cases, the plans have no possible obligation to pay benefits. The plans were created simply

to make group insurance available to employees, and

2

See also, e.g., Echague v. Metro. Life Ins. Co., 43 F. Supp. 3d

994, 1006-08 (N.D. Cal. 2014) (insurer, who decided claims and

was solely responsible for benefit payment, was only proper defendant); Cox v. Allin Corp. Plan, 2013 WL 1832647, *4 (N.D. Cal.

May 1, 2013) (same); Greenwald v. Liberty Life Assur. Co. of Boston, 932 F. Supp. 2d 1018, 1047 (D. Neb. 2013) (“[T]he proper defendant in a claim for benefits ‘is the party with authority, under

the relevant plan documents, to pay benefit claims from plan assets. . . .’ ”) (citation omitted); Milton v. Life Ins. Co. of N. Am., 2012

WL 2357800, at *1 (N.D. Ala. June 20, 2012) (“[T]he party with

decisional control over the plaintiff ’s benefits claim . . . is the only

proper defendant in an action concerning ERISA benefits.”); Portz

v. Hartford Life & Accident Ins. Co., 2008 WL 2986272, at *3, *7

(D. Neb. July 31, 2008) (same); Slayhi v. High-Tech Inst., Inc., 2007

WL 4284859, at *10 (D. Minn. Dec. 3, 2007) (“[T]he proper defendant under § 1132(a)(1)(B) is the party with authority, under the

relevant plan documents, to pay benefit claims from plan assets. . . . [L]iability, if any, must be congruent with . . . authority

under the plan.”); Sawyer v. Potash Corp. of Saskatchewan, 417

F. Supp. 2d 730, 737 (E.D.N.C. 2006), aff ’d, 223 Fed. App’x 217

(4th Cir. 2007) (same); Williams v. Unum Life Ins. Co. of Am., 250

F. Supp. 2d 641, 645 (E.D. Va. 2003) (same).

13

they consist of nothing but insurance policies. The only

benefits payable under the plans are insurance benefits, and the insurers alone are responsible for paying

those benefits. Because the policies are the sole mechanism for funding plan benefits, no term in either plan

would require—let alone permit—the plans themselves to pay benefits to Petitioners. In other words, the

Colorado Supreme Court correctly held that the lower

courts granted summary judgment in favor of the

plans because they have no legal obligation to pay benefits to Petitioners.

In addition, in these circumstances, allowing suit

against a plan would make no sense. When the plan

itself has no assets, a claimant cannot collect a judgment against it. Because ERISA provides that a judgment against a plan “shall not be enforceable against

any other person unless liability against such person

is established in his individual capacity[,]” 29 U.S.C.

§ 1132(d)(2), an uncollectable judgment against a plan

would be valueless; the claimant would still need to

separately establish a substantive basis for liability

against the insurer—and due process would require

the claimant to name the insurer as an additional defendant and to separately prove up the insurer’s liability to pay benefits. Given this reality, applying ERISA

to permit plaintiffs to pursue claims against entirely

insurance-funded and insurer-controlled plans would

merely authorize an exercise in futility.

Petitioners may bring their claims against the insurance companies that fund the plans, received Petitioners’ applications for benefits, determined their

14

eligibility, and would be liable to pay benefits to Petitioners in the event of reversal. That is what claimants

have done since the 1974 enactment of ERISA in literally tens of thousands of cases. Why, this Court might

ask, didn’t Petitioners simply do that? For the simple

reason, related to the separate service-on-Secretary issue addressed below, that Petitioners and their counsel

were determined to sue only the plans in order to

conceal the fact of their suits and to obtain default

judgments, by serving their complaints only on the

Secretary. For the reasons discussed below, ERISA

does not permit substitute service on the Secretary in

these cases, where the plans had designated agents for

service of process. Regardless, under the facts of these

cases, where the insurers are the only “part[ies] having

the obligation to pay,” Larson, 723 F.3d at 913, Petitioners have no valid claims for benefits against the plans.

B. The Claimed Conflict Does Not Warrant

Certiorari Review

There is no conflict that would justify this Court’s

exercise of jurisdiction. The circuit courts have held, almost uniformly, that the proper defendant in a claim

under Section 1132(a)(1)(B) is whoever is responsible

for resolving and paying claims, which will not necessarily be the plan itself. When a plan is fully funded by

an insurance policy and the insurer makes all claim

decisions and pays all benefits, the insurer, and not the

plan, is the proper defendant.

15

For example, in Peters v. Hartford Life & Accident

Insurance Co., 579 Fed. App’x 866, 867 (11th Cir. 2014),

the Eleventh Circuit affirmed the district court’s dismissal of the plaintiff ’s claim against his employer because the disability plan was insurance-funded and

“ ‘granted the Insurance Company full discretion and

authority to determine eligibility for benefits and to

construe and interpret all terms and provisions of the

Policy.’ ” Peters v. Hartford Life & Accident Ins. Co.,

2007 WL 9697659, *2 (N.D. Ala. Nov. 2, 2007) (quoting

plan). Under those circumstances, which also exist

here, the insurer was “[t]he only proper party” under

Section 1132(a)(1)(B). Id.3

The Eighth Circuit has reached the same conclusion, affirming dismissal of a Section 1132(a)(1)(B)

claim for benefits against a plan administrator where

the plan was insurance-funded and it was “undisputed

the Plan requires [the insurer] and not [the employer

and plan administrator] to pay LTD benefits to Brown

if she is disabled.” Brown v. J.B. Hunt Transport Servs.,

Inc., 586 F.3d 1079, 1088 (8th Cir. 2009). See also Richmond, 246 Fed. App’x at 400 n.2 (“Because CNA was the

sole administrator of the plan at all relevant times and

[the plaintiff ’s employer and plan sponsor] had no role

3

See also, e.g., Griffin, 647 Fed. App’x at 923 (affirming dismissal of Section 1132(a)(1)(B) claim for unpaid benefits against

the employer sponsor of a group health benefit plan, where the

plan made clear that the employer “had no responsibility for determining whether benefits are payable under the Plan or the

amount of benefits payable[,]” and “[i]nstead, [an insurer, as the

claims administrator] alone had the authority to make those determinations”).

16

in the discontinuation decision [the employer] was

never a proper defendant.”) (per curiam).

In Sawyer, the Fourth Circuit affirmed the dismissal of a claim for benefits against a plan and its employer sponsor “for the reasons stated by the district

court,” 223 Fed. App’x 217, *1, which were that the plan

was wholly funded by an accidental death and dismemberment insurance policy, and the plan delegated

to the insurer all responsibility for administration of

the plan: “The court finds no evidence that the [plan

and the employer sponsor] exerted any influence on

[the insurer’s] decision to deny benefits to plaintiff.

Therefore the court holds that [the insurer] is the only

proper defendant[.]” Sawyer, 417 F. Supp. 2d at 737

(emphasis in original).

Seventh and Ninth Circuit decisions portend a

similar outcome. Because “a cause of action for ‘benefits due’ must be brought against the party having the

obligation to pay,” Larson, 723 F.3d at 913 (emphasis

added), the Seventh Circuit has held: “When an employee-benefits plan is implemented by insurance and

the insurance company decides contractual eligibility

and benefits questions and pays the claims, an action

against the insurer for benefits due ‘is precisely the

civil action authorized by § 1132(a)(1)(B).’ ” Id. (quoting Cyr, 642 F.3d at 1207). Although Larson decided

that a claim against the insurer was proper rather

than whether a claim against a plan was improper, the

court’s touchstone inquiry—who is obligated to pay the

claim?—is a strong indicator that the Seventh Circuit

17

would reject a claim against a plan that has no responsibility for determining eligibility, assessing claims, or

paying benefits.

The en banc Ninth Circuit reached the same conclusion in Cyr: where “the plan administrator . . . had

nothing to do with denying Cyr’s claim for increased

benefits[,]” and the insurer instead “effectively controlled the decision whether to honor or deny a claim

under the program[,]” a claim against the insurer was

proper. 642 F.3d at 1203, 1207. Like Larson, Cyr did not

require the Ninth Circuit to decide the inverse question—whether a claim against the plan in those circumstances would have been improper—but the

court’s functional analysis would likely lead to that

conclusion.

Petitioners argue that the Colorado Supreme Court

decision “directly conflicts” with only one court of appeals decision, Chapman v. ChoiceCare Long Island

Term Disability Plan, 288 F.3d 506 (2d Cir. 2002),

which allowed a Section 1132(a)(1)(B) claim to proceed

against an insured plan. See Pet. 8.4 This purported

4

Petitioners also rely on Kirby v. TAD Resources International, Inc., 136 N.M. 148, 95 P.3d 1063 (N.M. App. 2004), in which

the New Mexico court permitted a plaintiff to proceed against a

plan in an unusual circumstance that does not exist here: “when

the disability insurer in control of administration of the plan has

been dismissed on res judicata grounds and is not a party and

Plaintiff cannot directly obtain a judgment against the insurer.”

Id., 95 P.3d at 1064, cited in Pet. 8. Years later, the plaintiff was

still trying to find some way to recover on her judgment against

the plan. Kirby v. Guardian Life Ins. Co. of Am., 148 N.M. 106, 231

P.3d 87 (2010). The Kirby decisions illustrate why allowing suit

18

conflict, however, is both illusory and falls far short of

justifying review, for many reasons.

• It is not clear from Chapman whether the plan

played a role in claim determinations (as opposed to

benefit payments), which would render it a proper defendant under Section 1132(a)(1)(B).

• Chapman mistakenly relied on and misconstrued Section 1132(d)(1), which provides that a plan

“may sue and be sued under this subchapter as an entity[.]” 288 F.3d at 509. This provision mirrors state

laws establishing that a corporation may sue or be

sued. It says nothing about what triggers a plan’s substantive liability, which, as this Court and other circuits have concluded, must be found in the “terms of

the plan.” 29 U.S.C. § 1132(a)(1)(B). See Larson, 723

F.3d at 913-14 (“[t]he main point of § 1132(d) is to adjust certain common-law liability rules[,]” but not to

make the plan a proper defendant in all circumstances); Hunt, 119 F.3d at 908 (Section 1132(d)(1) “sue

and be sued” language does not obviate the requirement that a defendant be, under the plan’s terms, “capable of providing the relief requested”).

• Relatedly, Chapman announced a wholesale

rule—“a plan is a proper defendant in an action to recover benefits under § 1132(a)(1)(B),” 288 F.3d at 509—

without regard for the terms of the plan. In so doing,

the decision contravened the fundamental rule that a

against a plan that has no responsibility for determining claims

or paying benefits conflicts with ERISA’s objective of providing

simple, inexpensive, and speedy remedies to beneficiaries.

19

claim for relief under Section 1132(a)(1)(B) “stands or

falls by the terms of the plan.” Kennedy, 555 U.S. at

300-01.

• Chapman relied on cases with critically distinct facts, including because they did not involve

insurance-funded plans, e.g., Crocco v. Xerox Corp., 137

F.3d 105 (2d Cir. 1998); Leonelli v. Pennwalt Corp., 887

F.2d 1195 (2d Cir. 1989), cited in Chapman, 288 F.3d at

510,5 and because they involved claims against plan

administrators rather than plans themselves, e.g.,

Neuma, Inc. v. AMP, Inc., 259 F.3d 864 (7th Cir. 2001).

At least one of the cited cases directly refutes the outcome in Chapman. In Layes v. Mead Corp., 132 F.3d

1246 (8th Cir. 1998), cited in Chapman, 288 F.3d at

510, the Eighth Circuit affirmed dismissal of claims

against the claimant’s employer and the plan, because

the insurer that controlled the claims process and

claim decisions through its policy was the only proper

defendant. 132 F.3d at 1249-50.

• Chapman is not even followed in the Second

Circuit. To undersigned counsel’s knowledge, in the

past sixteen years, no Second Circuit decision has cited

Chapman for the proposition that a plan is always a

proper defendant in a claim for benefits under Section

5

In Leonelli, the plaintiff challenged his employer’s denial of

benefits under an insurance-funded LTD plan, the company’s pension plan, and its salary continuation plan. 887 F.2d at 1197. The

only claim that plaintiff sought leave to bring as an ERISA claim

was for denial of benefits under the pension plan, which was administered by an administrative committee, not an insurer. Id. at

1199.

20

1132(a)(1)(B). Moreover, the single post-Chapman Second Circuit case cited in the petition does not cite

Chapman, does not apply an absolute plan-as-defendant rule, and, instead, functionally analyzes who is a

proper defendant. See New York State Psychiatric

Ass’n, Inc. v. UnitedHealth Grp., 798 F.3d 125, 132 (2d

Cir. 2015) (“[W]here the claims administrator has ‘sole

and absolute discretion’ to deny benefits and makes ‘final and binding’ decisions as to appeals of those denials, the claims administrator exercised total control

over claims for benefits and is an appropriate defendant in a § 502(a)(1)(B) action for benefits[.]”); see also

id. at 132 n.5 (“We need not and do not decide whether

a claims administrator that exercises less than total

control over the benefits denial process is an appropriate defendant under § 502(a)(1)(B).”).

Petitioners’ conflict argument disingenuously invokes Geddes v. United Staffing Alliance Employee

Medical Plan, 469 F.3d 919, 931 (10th Cir. 2006), as a

relatively recent case holding that ERISA beneficiaries

may always bring Section 1132(a)(1)(B) claims against

the plan. Pet. 9-10. As Petitioners’ counsel knows

well—because it’s plainly stated in Geddes and was repeatedly noted by Respondents and the courts over the

course of this litigation—Geddes involved a self-funded

medical plan that “explicitly reserves to [plaintiff ’s

employer, the plan administrator] the right to make all

final decisions about benefits paid under the terms, as

well as the authority to interpret disputed Plan provisions.” 469 F.3d at 922; see also Pet. App. 20a n.4, 30a,

75a.

21

In the end, contrary to Petitioners’ “the sky is falling” hyperbole, their conflict argument is much ado

about nothing. The Colorado Supreme Court’s decision

builds on and is consistent with the overwhelming body

of law concerning liability under Section 1132(a)(1)(B).

It is merely one more decision—and a state decision

that will bind no federal court—on an issue that many

other courts already have decided consistently and

that must be based on the terms of specific plans and

the facts of specific cases. The impact on ERISA claimants will be infinitesimal because they can and will sue

the correct defendant—the insurer—except in the unusual case (like these) where a creative lawyer seeks

to invoke ERISA’s substitute-service provision in order

to hide the fact of the lawsuit from the proper defendant.

II.

Service-on-Secretary Issue

A. The Colorado Supreme Court’s Holding

Is Correct

ERISA provides that a “person” may serve as

agent for service of process, 29 U.S.C. § 1022(b), and it

defines a “person” as including a “corporation.” Id.

§ 1002(9). “Service . . . upon a trustee or an administrator of an employee benefit plan in his capacity as

such shall constitute service upon the employee benefit

plan.” Id. § 1132(d)(1). In compliance with these provisions, the SPDs for the PSCU plan and the Colorado

Access plan designated corporate entities—PSCU and

22

Colorado Access, respectively—as the plans’ agents for

service of process.

Petitioners assert no challenge to these statutory

provisions and they don’t dispute that the plans designated agents for service of process. Nevertheless, ignoring the plans’ designations and ERISA’s procedure

for service on the designated agent under Section

1132(d)(1), Petitioners made substituted service on

the Secretary, relying on another sentence in Section

1132(d)(1): “In a case where a plan has not designated

in the summary plan description of the plan an individual as agent for service of legal process, service

upon the Secretary shall constitute such service.”

Every court that has considered this issue—in

these cases and in others in which Petitioners’ counsel

has taken the same position, see infra at 27—has rejected Petitioners’ argument, and for good reason.

As a starting point,

the meaning of a word cannot be determined

in isolation, but must be drawn from the context in which it is used. . . . Ordinarily, a

word’s usage accords with its dictionary definition. In law as in life, however, the same

words, placed in different contexts, sometimes

mean different things.

...

[I]dentical language may convey varying

content when used in different statutes,

23

sometimes even in different provisions of the

same statute.

Yates v. United States, __ U.S. __, 135 S. Ct. 1074, 1082

(2015) (emphasis added).

Applying these principles, this Court and other

courts have confirmed that the word “individual” is not

rigidly limited to natural persons, and often applies to

business entities, too. For instance, in Clinton v. City of

New York, 524 U.S. 417 (1998), the plaintiffs challenged

the constitutionality of the Line Item Veto Act, which

provided standing to “any individual adversely affected.” Id. at 428. Against a challenge brought by several businesses, the Government argued that standing

under the Act was limited to natural persons. The

Court rejected the argument, holding that “in the context of the entire [statutory] section Congress undoubtedly intended the word ‘individual’ to be construed as

synonymous with the word ‘person,’ ” which included

business entities. Id. The Court stated:

There is no plausible reason why Congress

would have intended to provide for such special treatment of actions filed by natural

persons and to have precluded entirely jurisdiction over comparable cases brought by

corporate persons. Acceptance of the Government’s new-found reading . . . would produce

an absurd and unjust result which Congress

could not have intended.

Id. at 429 (internal quotation marks and citations

omitted). See also, e.g., Consol. Edison of New York, Inc.

v. Pataki, 292 F.3d 338, 346-49 (2d Cir.) (a corporation

24

is an “individual” protected by the Constitution’s Bill

of Attainder Clause), cert. denied, 537 U.S. 1045 (2002);

United States v. Middleton, 231 F.3d 1207, 1210 (9th

Cir. 2000) (“individuals” as used in a prior version of 18

U.S.C. § 1030(e)(8), includes “corporations”: “[The word

‘individual’] does not necessarily exclude corporations.

Webster’s Third New Int’l Dictionary 1152 (unabridged

ed. 1993) provides five definitions of the noun ‘individual, the first being ‘a single or particular being or thing

or group of beings or things.’. . . [A] corporation can be

referred to as an ‘individual.’ ”) (emphasis in original);

In the Matter of Parentage & Support of M.K.M.R., 199

P.3d 1038, 1041-43 (Wash. App. 2009) (“[t]he term ‘individual’ is not a term of art limited only to natural

persons”); Individual, The Law Dictionary, available

at http://thelawdictionary.org/individual (defining “individual” as “very commonly, a private or natural person,”

but “this restrictive signification is not necessarily inherent in the word, and . . . it may, in proper cases, include artificial persons”).

Mohamad v. Palestinian Authority, 566 U.S. 449

(2012), the sole case cited for the petition’s narrow construction of “individual,” Pet. 16, actually undermines

Petitioners’ position. While Mohamad reads “individual” as used in the Torture Victim Protection Act of

1991, 106 Stat. 73, note following 28 U.S.C. § 1350, as

limited to natural persons, the Court made clear that

“[t]his is not to say that the word ‘individual’ invariably means ‘natural person’ when used in a statute.” 566

U.S. at 455. Rather, “Congress remains free, as always,

to give the word a broader or different meaning” so

25

long as there is “some indication Congress intended

such a result.” Id. (emphasis in original). And “the statutory context [may] make[ ] that intention clear, because any other reading of ‘individual’ would lead to an

‘absurd’ result Congress could not plausibly have intended.” Id. (quoting Clinton, 524 U.S. at 429). Accord

Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d

289, 292 (4th Cir. 1986) (construing the word “individual” as used in the Bankruptcy Code provision for recovery of damages and fees by “an individual injured

by any willful violation” of an automatic stay “to include a corporate debtor”: the word “must be read in

conjunction with the rest of [11 U.S.C.] § 362 and . . .

its sanctions are not limited to the relief of an ‘individual’ in the literal sense . . . [where] [s]uch a narrow construction of the term would defeat much of the purpose

of the section”).6

Here, the statutory context makes Congress’s intent clear. The Colorado Supreme Court properly read

the word “individual” as used in Section 1132(d)(1) in

the larger context of the relevant ERISA provisions. In

a rhetorical question, the court identified and then

avoided the absurd result that would result under Petitioners’ construction: “Why would Congress expressly

allow a plan to designate a corporation as agent for service of process . . . and then, simultaneously, allow the

plaintiff to ignore the designated agent for service of

process because it’s a corporation?” Pet. App. 13a. The

6

In Budget Service, the relevant Bankruptcy Code provision

appeared at 11 U.S.C. § 362(h). It now appears at 11 U.S.C.

362(k)(1).

26

Court correctly rejected a restrictive interpretation

that would effectively negate ERISA’s express authorization for a corporation to serve as agent for service.7

B. There Is No Conflict

Petitioners do not assert a conflict among circuits

or any courts as a basis for certiorari review of the service-on-Secretary issue. They could not. To Respondents’ knowledge, no court has ever adopted their

assertion that Section 1132(d)(1) permits service on

the Secretary where the plan has properly designated

an entity as its agent for service of process.

III. These Cases Are a Poor Vehicle for Review

Petitioners’ lawyer has regularly (a) sued self-insured

plans that have no responsibility for determining

7

Petitioners state that “each and every time the ERISA statute uses the term ‘individual’ as a noun, it clearly refers to an

actual human.” Pet. 16. The “as a noun” qualification appears deliberate. In another subsection of the very same section in which

the substitute-service provision appears, ERISA uses “individual”

as an adjective to refer to a non-natural person: “Any money judgment under this subchapter against an employee benefit plan

shall be enforceable only against the plan as an entity and shall

not be enforceable against any other person unless liability

against such person is established in his individual capacity under this subchapter.” 29 U.S.C. § 1132(d)(2). Congress plainly did

not intend the word “individual” as used in Section 1132(d)(2) to

be limited to natural persons—otherwise claimants would be unable to enforce a judgment against a corporation whose liability

was established. Moreover, ERISA expressly defines a “person,”

described in Section 1132(d)(2) as having an “individual capacity,”

as including all forms of entities. 29 U.S.C. § 1002(9).

27

claims or paying benefits, instead of suing the insurers

who bear those responsibilities under the terms of the

plans, and (b) made substitute service on the Secretary

instead of serving the agents designated in the plans’

SPDs. See Cave v. Group Long Term Disability of Convergys Corp., No. 07-CV-6981 (Denver Dist. Ct. March

12, 2009); Hart v. CapGemini US LLC Welfare Benefit

Plan, Case No. 07-CV-6765 (Denver Dist. Ct. Oct. 2,

2009), aff ’d after removal, 547 Fed. App’x 870 (10th

Cir. 2013); Cobler v. The Am. Gen. Long-Term Disability

Plan for Employees, Case No. 07-CV-12520 (Denver

Dist. Ct. Oct. 25, 2010); see also Bigley v. Ciber, Inc.

Long Term Disability Coverage, 570 Fed. App’x 756

(10th Cir. 2014).

In all of those cases, the Secretary did not forward

the served complaints to the relevant plans, which allowed Petitioners’ counsel to conceal his clients’ lawsuits from both the plans and the responsible insurers,

and to obtain default judgments in ex parte proceedings. And in all those cases, as here, the plans challenged the default judgments once they were

discovered, and the defaults were vacated. Pet. App.

56a; Bigley, 570 Fed. App’x at 758. Aside from Petitioners’ counsel’s repeated efforts, Respondents know of no

other similar cases.

The petition is a direct outgrowth of the Colorado

courts’ refusal to play along with Petitioners’ counsel’s

scheme for avoiding the terms of ERISA-governed

plans and ERISA’s service of process requirements.

Particularly in this dubious and unusual context, the

28

questions presented do not justify this Court’s intervention.

------------------------------------------------------------------

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

MICHAEL S. BEAVER

HOLLAND & HART, LLP

6380 South Fiddlers Green

Circle, Suite 500

Greenwood Village, CO 80111

303-290-1600

mbeaver@hollandhart.com

Counsel of Record

MARCY G. GLENN

HOLLAND & HART, LLP

555 17th Street, Suite 2600

Denver, CO 80202

303-295-8000

mglenn@hollandhart.com

Counsel for Respondents

July 25, 2018