Four ERISA plan participants, who participated in four different ERISA plans, commenced an ERISA class action against four of the nation’s largest pharmacy benefit managers (PBMs), alleging that the PBMs breached their fiduciary duties by failing to ensure that the plaintiffs and other plan participants received the benefit of discounts that the PBMs had negotiated

A federal district court in Texas referred to arbitration a 401(k) plan participant’s ERISA breach of fiduciary duty action based on allegations that certain plan investment options charged excessive fees.  In a two-page order, the court instructed the arbitrator to determine whether the arbitrator or a court should determine whether the class action waiver provision

A federal district court in Washington recently granted preliminary approval to a $6 million settlement of a mental health parity class action suit against Regence Blueshield.  Plaintiffs claimed that defendants routinely excluded and limited coverage of the essential therapies to treat children with developmental disabilities.  A fairness hearing is scheduled for September 11, 2015.  The

The Second Circuit ruled today in Parisi v. Goldman, Sachs & Co. that a plaintiff was required to arbitrate her Title VII claim even though it would effectively preclude her from pursuing a class claim in federal court or in arbitration. The issue of class action waivers is a subject of great debate in the

The Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes impacted not only employment class actions but the viability of class certification in ERISA cases. The Supreme Court’s grant of certiorari last term in Comcast Corporation v. Behrend has the potential to similarly impact the future availability of class certification in ERISA actions. The Supreme Court granted Comcast’s petition for certiorari with respect to the following question on which the federal circuit courts have been divided since Dukes:

Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.

Although Comcast is an antitrust lawsuit, the Supreme Court’s decision could affect certification decisions in ERISA class actions, since the evaluation of class certification motions in ERISA cases often involves an assessment of the parties’ respective expert analyses.

Experts have always played a significant role in complex class action litigation, including ERISA lawsuits, but the courts’ views as to the role of experts at the class certification stage were inconsistent at best. The Supreme Court’s decision in Dukes arguably affected the analysis, insofar as the Court set forth a “significant proof” standard for satisfying Fed. R. Civ. P. 23. As part of the “significant proof” discussion, the Supreme Court stated in dicta that the admissibility standard for expert evidence set forth in Daubert v. Merrell Dow Pharmaceuticals Inc.,[1] should apply at the class certification stage. After Dukes, the circuit courts have divided on whether a ruling on the admissibility of expert evidence is a prerequisite to a class certification ruling. The Supreme Court’s ruling in Comcast should resolve this split and, in so doing, significantly impact the outcome of class action litigation, including ERISA litigation.