Question
Has Shenk been the subject of another circuit decision so that the Supreme Court can now look at the appropriate equitable relief argument rejected by the 8th circuit in Shenk?
Answer
The issue of appropriate equitable relief was presented and rejected by the 11th Circuit in Zurich American Ins. Co. v. O’Hara, 604 F.3d 1232 (11th Cir. 2010). The Court stated that the plan must be enforced as written to preserve integrity of written, bargained-for benefit plan. The made whole doctrine was rejected. So we have a case here which was not decided differently from Shank but the attorneys in O’Hara have petitioned the Supreme Court for cert (attached).
It also worth noting that Public Justice (formerly Trial Lawyers for Public Justice) has joined in the cause. They are also fighting this issue in the 9th (Western District of Washington; Case No.: CV10 298 RSM; CGI Technologies and Solutions v. Rose) and 3rd Circuits. So while the issue isn’t poised to be immediately before the Court a conflict among circuits may yet arise, which would increase the odds of cert being granted at some point.
I hope you found the response helpful and please let us know if you have any additional questions.
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