ORDER PARTIALLY GRANTING MOTION FOR SUMMARY JUDGMENT BY MORGAN STANLEY AND THE PLAN, DENYING MOTION FOR SUMMARY JUDGMENT BY UNUM, AND ALLOWING LIMITED DISCOVERY

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this ERISA action, all defendants move for summary judgment. Plaintiff opposes the motions and requests leave to take discovery. For the reasons stated below, one motion for summary judgment is GRANTED IN PART AND DENIED IN PART, the other motion for summary judgment is DENIED, and limited discovery will be allowed.

STATEMENT

Plaintiff Michele P. Sconiers was hired as a level-two banking associate by defendant Morgan Stanley & Co., Inc., on July 24, 2006. Less than a year later, on June 27, 2007, plaintiff stopped working due to a variety of disabling symptoms, including pain, swelling, fevers, dizziness, and forgetfulness. Plaintiff was 33 years old at the time, and her base salary was $100,000. Before joining Morgan Stanley, plaintiff had worked as an attorney at the Skadden, Arps law firm (Sconiers Decl. ¶¶ 2-3, 6; Braun Decl. ¶ 3; AR 114, 140-41).1

Plaintiff applied for disability benefits based on her participation in defendant Morgan Stanley Disability Plan, alleging a disability onset date of June 22, 2007. Defendant Morgan Stanley was the plan administrator of the Plan, and defendant First Unum Life Insurance Company was the claims fiduciary for long-term disability benefits under the Plan. Unum approved plaintiff's claim and begin paying her long-term disability benefits (AR 114-19, 131-42). According to plaintiff, however, the payments were too low. Plaintiff argues that her benefits were calculated under the wrong policy and that the terms of the disputed policy were not even applied correctly. Specifically, plaintiff argues that her claims were subject to the 2006 policy rather than the 2007 policy, and that the calculation of her benefits should have taken into account her expected bonuses and income from her previous employment as an attorney at Skadden.

Plaintiff sought medical treatment from numerous specialists, but her condition did not improve and no conclusive diagnosis was made that could explain all of her symptoms. In March 2010, Unum terminated plaintiff's benefits pursuant to a two-year limitation on benefits for disability due to mental illness (AR 2832-41). The termination was based on reports by Unum's retained physicians, who had reviewed plaintiff's medical files and concluded that mental illness was the most plausible explanation for her combination of persistent symptoms. Specifically, Unum's physicians opined that plaintiff suffered from somatoform disorder, a condition in which the patient believes herself to be suffering physical ailments that cannot otherwise be explained (e.g., AR 2786). Plaintiff, however, did not claim to suffer from any mental illness and in fact continues to deny any mental illness. Plaintiff appealed the termination of her benefits, and in November 2010 Unum upheld its denial on appeal (AR 3808-14).

Five months later, plaintiff filed the instant action. Her first amended complaint, which is currently operative, asserted four claims for relief: (1) recovery of employee benefits under 29 U.S.C. 1132(a)(1)(B), against all three defendants; (2) equitable relief under 29 U.S.C. 1132(a)(3), against Morgan Stanley and Unum; (3) declaratory and injunctive relief under California Insurance Code § 10144, against Unum; and (4) civil penalties for failure to produce documents under 29 U.S.C. 1132(c)(1) and 29 C.F.R. 2575.502c-1, against Morgan Stanley. A motion by Unum to dismiss the second and third claims was denied, but portions of the complaint were stricken (Dkt. No. 68).

All three defendants now move for summary judgment on all claims against them. Morgan Stanley and the Plan filed a joint motion, and Unum filed a separate motion. Plaintiff opposes both motions and requests leave to take discovery. This order follows full briefing and a hearing.

ANALYSIS

Each motion will be addressed in turn.

1. MOTION FOR SUMMARY JUDGMENT BY MORGAN STANLEY AND THE PLAN.

The operative complaint asserted one ERISA claim against the Plan and three ERISA claims against Morgan Stanley. Each claim will be addressed in turn.

A. Claim for Recovery of Benefits Under 29 U.S.C. 1132(a)(1)(B).

Section 1132(a)(1)(B) allows a plan participant "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" by way of a civil action. The factual theories underlying plaintiff's Section 1132(a)(1)(B) claims against Morgan Stanley and the Plan are that the 2007 policy was not properly adopted, that notice of the 2007 policy was not properly provided, and that the policy terms were not properly applied to the calculation of her benefit. Each factual theory will be addressed in turn.

(1) Adoption of the 2007 Policy.

Every ERISA plan must "provide a procedure for amending such plan, and for identifying the persons who have authority to amend the plan." 29 U.S.C. 1102(b)(3). The parties agree that the relevant procedure was set forth as follows in the 2006 summary plan description (Braun Exh. M at MS00000262) (emphasis added):

In 1989, the board of directors empowered an executive committee to exercise "all the powers of the Board of Directors in the management of the business and affairs of the Corporation to the extent provided by Section 141(c) of the General Corporation Law of the State of Delaware as it exists now or as it may be hereafter amended" (Tyler Exh. D at MS000811). Nothing in Section 141(c) forbade an executive committee of a corporation's board of directors (as opposed to the board itself) from amending the corporation's ERISA plan.

In November 2006, the executive committee amended the Plan by adopting the 2007 long-term disability benefits policy to replace the 2006 policy (Tyler Exh. H at MS00000033, MS00000050). Because the executive committee had been empowered to act with "all the powers of the Board of Directors" and the board of directors had authority amend the Plan, this amendment was valid.

Plaintiff's arguments to the contrary are unavailing. First, plaintiff's evidentiary objections to the Tyler declaration are overruled. Defendants' reliance on Mr. Tyler to authenticate corporate records was proper. Second, plaintiff's assertion that "[t]here is no actual designation of the authority to the Executive Committee named in Exhibit H to amend plan documents or to act on behalf of the Board" is incorrect (Opp. 16). Exhibit D to the Tyler declaration, quoted above, conferred the requisite authority.

Third, plaintiff's contention that the executive committee's authority must be drawn from corporate bylaws misreads Section 141(c), which lists corporate bylaws as only one possible source of such authority (emphasis added): "Any such committee, to the extent provided in the resolution of the board of directors, or in the bylaws of the corporation, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation." Thus, the power of a committee to act with authority of the board of directors may be conferred either by resolution of the board or in the bylaws. Here, it was conferred by resolution of the board.

Fourth, plaintiff asserts that "there is no document appointing successors to [the original members of the executive committee], much less appointing the individuals who allegedly approved the 2007 plan amendment" (Opp. 17). Not so. Exhibit E to the Tyler declaration documents the appointment of the individuals who executed the plan amendment on behalf of the executive committee. They were appointed in November 2005, a year before they adopted the 2007 long-term disability policy on behalf of the board (Tyler Exh. E at MS00000202). Moreover, plaintiff cites no authority requiring proof of the full chain of succession of executive-committee membership. Plaintiff notes that the composition and size of the committee changed over time, but plaintiff does not explain why those changes supposedly render the November 2006 committee action invalid.

The many out-of-circuit decisions plaintiff cites are not binding and therefore need not be addressed. Moreover, those decisions are inapposite because here the plan amendment was made in writing by a committee that the board of directors authorized to act on its behalf. Plaintiff cites controlling authority for the proposition that failure to comply with specified amendment procedures nullifies purported amendments. Plaintiff, however, has failed to identify any respect in which adoption of the 2007 long-term disability policy failed to comply with the Plan's amendment procedures. This order finds that adoption of the 2007 policy by the executive committee was valid.

(2) Notice of the 2007 Policy.

"[T]he plan administrator shall use measures reasonably calculated to ensure actual receipt of the material by plan participants." 29 C.F.R. 2520.104b-1(b)(1). As stated, Morgan Stanley served as the plan administrator for the Plan. During the open-enrollment period in October 2006, Morgan Stanley sent a packet of documents by first-class mail to plaintiff's home address. The packet included a 2007 benefits-enrollment guide and a two-page guide to "What's New in 2007" (Braun Decl. ¶ 5). The latter document highlighted several specific policy changes including the one plaintiff now challenges — a new method for calculating Health and Welfare Eligible Earnings for purposes of determining long-term disability benefits. It advised participants to "take the time to review and understand these changes" and it explained how to access more information, including the 2007 summary plan description, from the internet or by calling a representative (Braun Exh. B at MS00000429-30).2

Plaintiff argues that this form of notice was inadequate. She challenges both the dissemination measures and the content of the documents themselves. These issues will not be decided at this stage on a cold administrative record. Plaintiff will be allowed to more fully develop the factual record before the adequacy of notice will be adjudged.

(3) Application of the 2007 Policy.

Plaintiff argues that the amount and duration of her disability benefits was not properly calculated, because the terms of the 2007 policy were not properly interpreted and applied to her disability claim. As the claims fiduciary, Unum — and not Morgan Stanley or the Plan — computed plaintiff's benefits. Morgan Stanley provided plaintiff's salary and employment information to Unum, but Unum had full discretionary authority to interpret and apply the plan terms (Braun Exh. D at MS00000068). Nonetheless, Morgan Stanley and the Plan do not dispute that they may be held liable under ERISA law for Unum's alleged miscalculation of plaintiff's benefits.3

Unum's interpretation and application of the relevant plan terms cannot be reviewed at this time. As explained below, discovery into Unum's conflict of interest and possible bias will be allowed before the proper degree of deference to Unum's decisions is chosen. Accordingly, the motion for summary judgment by Morgan Stanley and the Plan cannot be granted as to the issue of plaintiff's benefit calculation at this time.

* * *

As to plaintiff's claim for recovery of benefits under 29 U.S.C. 1132(a)(1)(B), the motion for summary judgment by Morgan Stanley and the Plan is GRANTED IN PART AND DENIED IN PART. This order finds that the adoption of the 2007 long-term disability policy by the executive committee was valid. As to that factual theory, the defense motion is GRANTED. As to the theories that notice of the 2007 policy was inadequate and that Unum improperly interpreted and applied the policy terms when calculating plaintiff's benefit payments, the motion is DENIED without prejudice to renewal after completion of the discovery allowed by this order below.

B. Claim for Equitable Relief Under Section 1132(a)(3).

Plaintiff asserts a claim for equitable relief under 29 U.S.C. 1132(a)(3) against Morgan Stanley. Section 1132(a)(3) is a catch-all, "safety net" provision that may be relied upon if adequate relief is not provided elsewhere by the statute; if an adequate remedy is provided elsewhere, then a claim under Section 1132(a)(3) is not appropriate. Varity Corp. v. Howe, 516 U.S. 489, 512-15, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). Here, Morgan Stanley has not shown that resort to the safety net of Section 1132(a)(3) is entirely out of the question.

In the operative complaint, plaintiff "asserts that a claim for benefits due under the Plan does not provide her with an adequate remedy at law in light of [defendants'] continuing course of conduct in violating the terms of the Plan and applicable law" (First Amd. Compl. ¶ 32). Plaintiff seeks the following relief against Morgan Stanley under Section 1132(a)(3): (1) an equitable surcharge to pay plaintiff the amount of benefits she believes she is owed; (2) an equitable reformation of the applicable policy imposing the benefit terms as plaintiff understood them; (3) equitable estoppel preventing defendants from relying upon the 2007 policy to calculate her benefits; and (4) an injunction requiring payment of all past and future benefits plaintiff believes she is owed (id. at ¶¶ 36, 38).

Although couched in terms of equitable relief, many of these requests seek money plaintiff believes she is owed as a remedy for Morgan Stanley's alleged breach of its fiduciary duty in administering the Plan and communicating with plaintiff about it. Plaintiff's claim under Section 1 132(a)(1)(B) enables her "to recover benefits due to [her] under the terms of [her] plan, to enforce [her] rights under the terms of the plan, or to clarify [her] rights to future benefits under the terms of the plan." This section "specifically provides a remedy for breaches of fiduciary duty with respect to the interpretation of plan documents and the payment of claims." Varity, 516 U.S. at 512, 116 S.Ct. 1065. Plaintiff may recover any past or future benefits she is owed under the Plan via Section 1132(a)(1)(B), so resort to Section 1132(a)(3) is unnecessary for recovery of benefits.

But there is more. Plaintiff argues that if her interpretation of the applicable policy is wrong — meaning she is not owed any benefits recoverable under Section 1132(a)(1)(B) — then the applicable policy should be reformed to match her understanding, and she should recover payment under the reformed terms. According to plaintiff, such a remedy is authorized by Section 1132(a)(3) on account of Morgan Stanley's alleged "failure to properly notify" her of the 2007 policy amendments (Opp. 12).

This order already found that initial notice of the 2007 amendments was adequate. When plaintiff became disabled, however, defendants affirmatively represented to her that the 2006 policy, and not the 2007 policy, governed her disability claim. When she initially requested a copy of the policy governing her disability claim, she was sent the 2006 policy rather than the 2007 policy. Defendant Unum "repeatedly represented" that the 2006 policy governed her claim, and Morgan Stanley was nonresponsive to plaintiff's repeated inquiries as to which policy applied (Sconiers Decl. ¶¶ 14-17, Exh. 6). Sometimes later, defendants reversed course. They now argue that the 2007 policy controls.

This history is troubling. Without speculating about the explanation for defendants' inconsistencies, this order finds that these facts have the potential to support a claim for equitable relief under Section 1132(a)(3), such as contract reformation. Morgan Stanley has not categorically disproved this potential.

First, Morgan Stanley argues that it provided adequate notice of the changes in the 2007 policy. This does not change the fact that Morgan Stanley's later communications with plaintiff regarding which policy applied to her claim were inconsistent and misleading.

Second, Morgan Stanley argues that "under clear Ninth Circuit authority, beneficiaries may bring fiduciary actions under § 1132(a)(3) only `for the benefit of the plan and not their individual benefit'" (Br. 15). Not so. The decisions Morgan Stanley cites for this proposition contain no such clear statement. The quotation in the brief referred to actions under Section 1109, not Section 1132. See Cinelli v. Sec. Pac. Corp., 61 F.3d 1437, 1445 (9th Cir. 1995). Moreover, the Supreme Court recently blessed the equitable remedy of contract reformation for mmistreated ERISA beneficiaries under Section 1132(a)(3), albeit in dicta. See CIGNA Corp. v. Amara, ___ U.S. ___, ___ -___, 131 S.Ct. 1866, 1870-72, 179 L.Ed.2d 843 (2011).

Third, Morgan Stanley argues that "claimants can generally bring claims either for plan benefits under section 1132(a)(1)(B) or for equitable relief under section 1132(a)(3), but not both" (Br. 16). The case law cited for this generalization simply explains the rule that Section 1132(a)(3) cannot be used to obtain relief provided elsewhere in the statute. Here, plaintiff seeks equitable relief under Section 1132(a)(3) based on a different theory than her claim under Section 1132(a)(1)(B) — namely, that defendants affirmatively misled her as to which policy governed her disability claim. This theory is not foreclosed by plaintiff's pursuit of other theories under other statutory provisions.

This order finds that discovery into plaintiff's communications with defendants regarding her disability claim is warranted. As to plaintiff's claim for equitable relief under 29 U.S.C. 1132(a)(3), the motion for summary judgment by Morgan Stanley is DENIED without prejudice to renewal after completion of the discovery allowed by this order below. Any relief under Section 1132(a)(3) will be limited to theories not viable under other provisions of the statute and in particular will not be available for benefits owed under the terms of the applicable policy as written.

C. Claim for Penalties for Failure to Produce Documents.

If an ERISA plan administrator fails to provide certain information within thirty days of a plan participant's request, district courts have discretion to impose a civil fine or order other relief. Specifically, a plan administrator

29 U.S.C. 1132(c)(1)(B). Plaintiff states in her declaration that from 2007 through 2010 she "made repeated requests by phone and in writing to Morgan Stanley for a copy of the 2007 Policy and an explanation of how [her] monthly benefit was calculated, only to receive no meaningful response from Morgan Stanley." Specifically, plaintiff states she had difficulty obtaining a copy of the 2007 long-term-disability policy and information concerning the calculation of her Health and Welfare Eligible Earnings — a figure used to calculate her long-term disability benefits (Sconiers Decl. ¶ 11). Plaintiff also complains that Morgan Stanley took shifting positions on which policy (2006 versus 2007) applied to her disability claim and on how her benefits were calculated (Opp. 21-22). Having considered the record of plaintiff's communications with Morgan Stanley, this order finds that civil penalties under Section 1132(c)(1)(B) may indeed be warranted.

Plaintiff's declaration refers to two email strings in which she sought assistance from Morgan Stanley — one from November 2007, and one spanning the period from January 2010 to April 2010. In the November 2007 emails, plaintiff asserted that "there may have been an error in the calculation of my HWEE" and requested to discuss the matter with a representative. Plaintiff did not request any information or documents at that time (Sconiers Exh. 5).

In the second string of emails, plaintiff did request information. On January 15, 2010, plaintiff asked a Morgan Stanley representative to "please provide my HWEE for 2006 and 2007" and "a copy of the Master Plan which applies to me." Morgan Stanley representatives followed up by phone and email and continued to work with plaintiff over the next few months. They apologized for delays and explained that it took "longer than expected for our Benefits Center to retrieve your records which have been archived since a while now" (Sconiers Exh. 6).

Plaintiff received a copy of the 2006 long-term-disability policy from defendant Unum on January 28, 2010, about two weeks after she asked Morgan Stanley for a copy of the applicable policy (First Amd. Compl. ¶ 13). On February 9, 2010, plaintiff emailed Morgan Stanley acknowledging receipt of the 2006 policy, expressing belief that the 2007 policy "may apply" to her disability claim, and requesting a copy of the 2007 policy (Sconiers Exh. 6). Morgan Stanley provided a copy of the 2007 long-term-disability policy and summary plan description on April 15, over two months after plaintiff's request (Braun Decl. ¶ 9).

As to the calculation of plaintiff's HWEE, Morgan Stanley provided plaintiff a computer screen shot reflecting the components of her pay used to calculate her HWEE on April 29, 2010, over three months after plaintiff's request for "my HWEE" (Braun Decl. ¶ 9). Plaintiff made several additional requests for clarification or further information concerning the calculation of her HWEE, and Morgan Stanley responded promptly to those requests (Braun Decl. ¶¶ 9-10; Higgins Decl. ¶¶ 2-4, 7-8).4

Thus, plaintiff has shown that Morgan Stanley took over two months to send her a copy of the 2007 policy and over three months to send her information relevant to the calculation of her HWEE. These delays far exceeded the thirty-day statutory deadline. Additionally, defendants' inconsistent communications regarding which policy (2006 versus 2007) governed plaintiff's disability claim, which were described above, suggest the possibility of bad-faith stonewalling. Discovery into these matters will be allowed.

Morgan Stanley's arguments on this point are unpersuasive. Contrary to Morgan Stanley, there is evidence of delay and reason to suspect bad faith. The relevant evidence was reviewed above, and the operative complaint supports this evidence. Although the relevant claim for relief explicitly referenced discovery delay "since April 13, 2010," it also "reallege[d] and incorporate[d] paragraphs 1 through 42," which included allegations of discovery delay in the 2009-2010 time frame (First Amd. Compl. ¶ 13). This is not a new theory.

Morgan Stanley also argues that the HWEE documentation is not subject to Section 1132(c)(1), because it is not "information which such administrator is required by this subchapter to furnish." Our court of appeals, however, has interpreted that phrase with some flexibility. For example, it recognized a claim for relief under Section 1132(c)(1) for delayed production of claim activity records, because the records were "relevant to the claimant's claim for benefits" and the ERISA regulations require provision of such information. Sgro v. Danone Waters of N. Am., Inc., 532 F.3d 940, 945 (9th Cir.2008). So too here. Morgan Stanley was obligated to provide plaintiff the requested HWEE information in a timely manner.

Morgan Stanley emphasizes the discretionary nature of civil penalties available under Section 1132(c)(1) and urges against exercising the discretion to impose penalties. This decision will be made after discovery, with the benefit of a more complete evidentiary record. As to plaintiff's claim for civil penalties for failure to produce documents under 29 U.S.C. 1132(c)(1)(B), the motion for summary judgment by Morgan Stanley is DENIED without prejudice to renewal after completion of the discovery allowed by this order below.

* * *

The motion for summary judgment by Morgan Stanley and the Plan is GRANTED IN PART AND DENIED IN PART. This order finds that the adoption of the 2007 long-term-disability policy by the executive committee was valid. As to that theory of recovery under 29 U.S.C. 1132(a)(1)(B), the motion is GRANTED. In all other respects, the motion is DENIED without prejudice to renewal after completion of the discovery allowed by this order.

Recovery of benefits under 29 U.S.C. 1132(a)(1)(B) is still possible based on the theory that notice of the 2007 policy was inadequate or the theory that Unum improperly interpreted and applied the applicable long-term-disability policy. Equitable relief under 29 U.S.C. 1132(a)(3) is still possible, but only for theories not viable under other provisions of the statute and in particular not for benefits owed under the terms of the applicable policy as written. Discretionary civil penalties under 29 U.S.C. 1132(c)(1)(B) are still possible as well.

2. MOTION FOR SUMMARY JUDGMENT BY UNUM.

The operative complaint asserted three claims for relief against Unum: two ERISA claims and one claim nominally under California state law. The first claim against Unum was for recovery of benefits under 29 U.S.C. 1132(a)(1)(B); this claim also was asserted against Morgan Stanley and the Plan.

The second claim against Unum was for equitable relief under 29 U.S.C. 1132(a)(3); this claim also was asserted against Morgan Stanley. The order on Unum's motion to dismiss ruled that one aspect of the equitable relief sought against Unum via this claim — removal of Unum as the claims fiduciary — was not available under Section 1132(a)(3) but might be sought under Section 1132(a)(2) instead (Dkt. No. 68 at 6).

The third claim against Unum was for declaratory and injunctive relief based on a finding that Unum had violated California Insurance Code § 10144. Plaintiff did not seek substantive relief under Section 10144 but rather cited it as a "relevant rule of decision" whose violation would demonstrate Unum's abuse of discretion under ERISA (see Dkt. No. 68 at 11). Accordingly, the parties' arguments concerning preemption of Section 10144 by ERISA need not be addressed here. Unum also argues that California law is irrelevant because the Plan's documentation states that it is governed by New York law (see AR 3855). Unum, however, does not explain how this choice-of-law provision supposedly eliminates Section 10144 as an applicable rule of decision under ERISA. Specifically, Unum has no answer for plaintiff's reference to our court of appeal's observation that "California law requires courts to deviate from the explicit policy definition of `total disability' in the occupational policy context." Hangarter v. Provident Life and Accident Ins. Co., 373 F.3d 998, 1006 (9th Cir.2004). The decision Unum cites to support its reliance on the choice-of-law provision addresses only statutes of limitations. See Wang Labs. v. Kagan, 990 F.2d 1126, 1128-29 (9th Cir.1993).

All three of plaintiff's claims for relief against Unum are based on the allegedly wrongful termination of plaintiff's long-term disability benefits and the allegedly inaccurate calculation of her benefit payments. As a threshold matter, the applicable standard of review must be determined before Unum's claims-administration decisions can be judged.

District court review of ERISA disability-benefit denials is de novo unless the plan gives the administrator discretionary authority to determine eligibility for benefits. If the plan grants discretionary authority, then the administrator's decision is reviewed with more deference. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). Here, the 2007 policy amendment stated: "In making any benefits determination under this policy, the Company shall have the discretionary authority both to determine an employee's eligibility for benefits and to construe the terms of this policy" (AR 3862). The 2007 summary plan description stated (Braun Exh. D at MS00000068):

Morgan Stanley delegated claims administration under the Plan to Unum, the claims fiduciary and insurer of the Plan (Braun Decl. ¶ 11). Thus, the Plan's documentation granted Unum discretionary authority to determine eligibility for benefits and to interpret the applicable policy terms. Plaintiff does not dispute that Unum had discretionary authority. Accordingly, the abuse-of-discretion standard applies to review of Unum's decisions concerning plaintiff's disability claim.

The fact that Unum acted both as the claims administrator and as the payor under the Plan created a structural conflict of interest, which must be factored into the abuse-of-discretion analysis. The Supreme Court's Glenn decision held that when the same entity determines eligibility for benefits and pays those benefits out of its own pocket, a conflict of interest is created, and "a reviewing court should consider that conflict as a factor in determining whether the plan administrator has abused its discretion in denying benefits." Glenn, 554 U.S. at 108, 128 S.Ct. 2343. Unum does not dispute that this structural conflict of interest was present.

The Supreme Court provided the following guidance for how a reviewing court should factor the structural conflict of interest into its analysis:

Id. at 115-17, 128 S.Ct. 2343 (internal quotations and citations omitted). Because Unum had a structural conflict of interest, Unum's decisions should be reviewed with heightened skepticism.

Addressing how little or how much to temper the abuse-of-discretion standard with skepticism, the Ninth Circuit has stated:

Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 968-69 (9th Cir.2006) (internal citations omitted). Although the Ninth Circuit's Abatie decision pre-dated Glenn, this aspect of earlier Ninth Circuit law remains in force. See Nolan v. Heald Coll., 551 F.3d 1148, 1153-54 (9th Cir. 2009). In some instances, it is necessary to evaluate evidence outside the administrative record to determine the conflict's "nature, extent, and effect, on the decision-making process." Id. at 1153.

Plaintiff points to a variety of evidence outside the administrative record to support her arguments that Unum's structural conflict of interest was exacerbated by bias and that Unum's decisions should be reviewed with heightened skepticism. This evidence is disconcerting. Lawsuits and large-scale investigations have revealed that for at least a decade starting in the mid-1990s Unum systematically engaged in bad-faith practices designed to wrongfully limit and deny benefits to ERISA plan participants (see Grey Exh. 2 at 1315, 1317-21). Federal judges have repeatedly commented on Unum's "disturbing pattern of erroneous and arbitrary benefits denials, bad faith contract misinterpretations, and other unscrupulous tactics." See Radford Trust v. First Unum Life Ins. Co. of Am., 321 F.Supp.2d 226, 247-48 & n. 20 (D.Mass.2004) (collecting citations).5

One such tactic was the use of "`round table' meetings with lawyers, doctors, and claims handlers designed to `tri-age' the most expensive claims," i.e., to find ways to clear expensive benefits claims from Unum's books before the end of the fiscal year. Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1012 (9th Cir.2007). Here, plaintiff was 33 years old at the time she stopped working, and her base annual salary was $100,000 (AR 140; Braun Decl. ¶ 3). Her claim was an expensive one. It was reviewed through the round-table process (e.g., AR 2609).6

A second such tactic involved abuse of mental-illness exceptions in order to wrongfully terminate benefits claims. For example, Unum's settlement of an investigation by the California Department of Insurance curtailed Unum's practice of construing 24-month mental-illness coverage as running concurrently with other coverage (AR 3212). Unum has previously terminated disability benefits pursuant to a mental-illness exception based on Unum's own unsupported conclusion that the claimant suffered from somatoform disorder. See Fitts v. Unum Life Ins. Co. of Am., No. 98-00617, 2007 WL 1334974, at *16-17 (D.D.C. May 7, 2007). Here, too, plaintiff's disability benefits (which were claimed for disabling physical symptoms) were terminated under a mental-illness exception based on an opinion by Unum's physicians that plaintiff suffered from somatoform disorder. Plaintiff notes that Dr. William Black, the Unum staff physician who referred her for neuropsychological evaluation, has been legally challenged in previous opinions of malingering by claimants (see AR 1680-82; Opp. 6).

Plaintiff has produced enough evidence to show that Unum's calculation of her disability benefits and termination of her claim under the mental-illness exception may well have been tainted by more than the structural conflict of interest. Unum insists that it has reformed its practices, but Unum's history of bad-faith dealing remains troubling in light of the present facts. In particular, the termination of a large claim under the mental-illness exception despite the claimant's denial of mental illness, following round-table review and a somatoform disorder diagnosis by staff physicians, raises suspicion of bias. Discovery will be allowed into the possibility that Unum evaluated plaintiff's claim in bad faith. Only after additional facts are brought to light will the standard of review for judging Unum's decisions be determined. Unum's motion for summary judgment is DENIED without prejudice to renewal after completion of the discovery allowed by this order.

3. PLAINTIFF'S REQUEST FOR DISCOVERY.

Pursuant to FRCP 56(d), plaintiff requests extensive discovery (Dkt. No. 63 at ¶¶ 22-25; Dkt. No. 65 at ¶¶ 4-6). Plaintiff's discovery request is overbroad, particularly in light of the narrowing of issues by this order. Plaintiff, however, has demonstrated that limited discovery regarding certain subjects is warranted.

The following discovery will be allowed. Plaintiff may serve twenty narrow interrogatories without sub-parts and thirty document requests that are narrowly drawn. Plaintiff also may take ten one-day depositions. This discovery must be directed to the following issues:

The discovery must be focused on these issues and may not be used to supplement the record with additional medical documentation supporting plaintiff's disability claim.

This limited discovery must be completed by MAY 31, 2012. A case management conference will be held at 11:00 A.M. ON JUNE 7, 2012, in order to set an evidentiary hearing on these issues or determine how else to proceed.

CONCLUSION

The motion for summary judgment by Morgan Stanley and the Plan is GRANTED IN PART AND DENIED IN PART. This order finds that the adoption of the 2007 long-term-disability policy by the executive committee was valid. As to that theory of recovery under 29 U.S.C. 1132(a)(1)(B), the motion is GRANTED. In all other respects, the motion is DENIED without prejudice to renewal after completion of the discovery allowed by this order. Recovery of benefits under 29 U.S.C. 1132(a)(1)(B) is still possible based on the theory that notice of the 2007 policy was inadequate or the theory that Unum improperly interpreted and applied the applicable long-term-disability policy. Equitable relief under 29 U.S.C. 1132(a)(3) is still possible, but only for theories not viable under other provisions of the statute and in particular not for benefits owed under the terms of the applicable policy as written. Discretionary civil penalties under 29 U.S.C. 1132(c)(1)(B) are still possible as well.

The motion for summary judgment by Unum is DENIED without prejudice to renewal after completion of the discovery allowed by this order.

Plaintiff's request for leave to take discovery is GRANTED IN PART AND DENIED IN PART. The limited discovery described above will be allowed. As to any discovery exceeding that scope, plaintiff's request is DENIED.

To the extent not specifically addressed herein, all evidentiary objections, motions to strike, and requests for judicial notice are DENIED AS MOOT.

The discovery allowed herein must be completed by MAY 31, 2012. A case management conference will be held at 11:00 A.M. ON JUNE 7, 2012, in order to set an evidentiary hearing on these issues or determine how else to proceed.

IT IS SO ORDERED.