Attorney Profile

Significant Cases

• • Parmenter v. Prudential Ins. Co. of Am., 93 F.4th 13 (1st Cir. 2024) (held that Prudential acted in a fiduciary capacity under ERISA, and not in business role when it made a discretionary election to increase premiums without approval from the Massachusetts Division of Insurance).
  • Moseley v. Unum Life Ins. Co. of Am., 659 F. Supp. 3d 89 (D. Mass. 2023) (held Unum Life’s failure to provide plan participant with independent medical examination (IME) when requested prior to making final benefit determination was a violation of the Regulatory Settlement Agreement with 47 state insurance regulators and an abuse of discretion under ERISA).
  • Jette v. United of Omaha Life Ins. Co., 18 F.4th 18 (1st Cir. 2021) (held insurance company materially violated the US Department of Labor ERISA claims regulations by failing to afford “full and fair review” of plan participant’s claim, by refusing to provide participant with medical examination report  before issuing insurance company final denial)
    
  • MacNaughton v. Paul Revere Life Insurance Company, 405 F.Supp.3d 203 (D. Mass. 2019) (Massachusetts federal court refused insurance company’s motion to transfer case to Kansas ERISA action for long-term disability benefits brought against insurer and its parent company with significant operation in Massachusetts even when doctor lived in Kansas)
  • Tyll v. Stanley Black & Decker Life Insurance Program, 403 F.Supp.3d 27, 41 (D. Conn. 2019) (judgment entered for widow Mrs. Tyll awarding life insurance benefits for $4 million plus interest of $1,891,442.73)
  • Kamerer v. Unum Life Insurance Company of America, 334 F.Supp.3d 411 (D. Mass.  2018) (as a matter of first impression in First Circuit, insurance company rather than ERISA plan participant, had burden to prove that physical disability from fibromyalgia was due to mental illness to justify terminating benefits after 24 months under the “mental and nervous” litigation)
  • Gross v. Sun Life Assurance Company of Canada, 320 F.Supp.3d 240 (D. Mass. 2018) (court awarded prejudgment interest at 12 percent, based on Massachusetts statutory rate, compounded annually for each monthly benefit and accruing through date of ERISA plan insurer’s final payment to participant for approximately 10 years of past due payments)
  • Gross v. Sun Life Assur. Co. of Canada, 880 F.3d 1 (1st Cir. 2018) (judgment awarding over 10 years of past due benefits through the date of judgment, and reversing the District Court for discounting attorney’s fees and failing to explain low rate for prejudgment interest)
  • Stephanie C. v. Blue Cross Blue Shield of Massachusetts HMO Blue, Inc., 813 F.3d 420 (1st Cir. 2016) (compelling First Circuit case holding a grant of discretionary decision-making authority in an ERISA plan must be couched in terms that unambiguously indicate that the claims administrator may construe the plan and determine whether benefits are due in particular instance).
  • Tracia v. Liberty Life Assurance Company of Boston, 164 F.Supp.3d 201 (D. Mass. 2016) (ERISA Administrator failed to provide required notice of type of evidence to support participant’s appeal). 
  • Gross v. Sun Life Assur. Co. of Canada, 763 F.3d 73 (1St Cir. 2014) (leading Circuit Court case nationwide holding remand to administrator was sufficient success on merits to establish participant’s eligibility for  attorney’s fees even if no benefits awarded)
  • Mead v. Reliastar Life Ins. Co., 768 F.3d 102 (2d Cir. 2014) (as matter of first impression in the Second Circuit, district court’s order remanding issues to plan administrator was not final and appealable to the Circuit court)
  • Auto Flat Car Crushers, Inc. v. Hanover Ins. Co., 469 Mass. 813 (2014) (filed Amicus Brief for United Policyholders supporting Auto Flat where Supreme Judicial Court held acceptance of a defendant’s tender of payment of insurance policy does not vitiate a claim under consumer protection statute automatically for multiple damages)
  • Gross v. Sun Life Assur. Co. of Canada, 734 F.3d 1 (1st Cir. 2013) (reversing 10 year old precedent holding “satisfactory to us” language as used in ERISA plan did not state with sufficient clarity that the plan administrator was to make a judgment largely insulated from judicial review under discretionary authority)
  • Petrone v. Long Term Disability Income Plan for Choices Eligible Employees of Johnson & Johnson and Affiliated Companies, 935 F.Supp.2d 278, 293 (D. Mass. 2013) (holding ERISA administrator cannot simply ignore contrary evidence, or engage with only that evidence which supports his conclusion)
  • Kaufmann v. Prudential Ins. Co. of America, 840 F.Supp.2d 495 (D.N.H. 2012) (court held administrative appeal deadline included in a summary plan description (SPD) only but not in the written instrument that established the plan was not enforceable against plan beneficiary)
  • Denmark v. Liberty Life Assur. Co. of Boston, 566 F.3d 1 (1st Cir. 2009) (leading First Circuit case holding in a review of a denial of ERISA benefits, a structural conflict must be accorded weight, albeit not necessarily dispositive weight, in the standard-of-review equation under ERISA)
  • McDonough v. Federal Ins. Co., 2012 WL 4060564, at *5 (D. Mass. 2012) (holding while using drugs and alcohol may cause some incidental bodily injury to the user, to suggest, that, as a per se rule, every drug and alcohol user intends to injure himself with such use, is divorced from reality)
  • Pinnacle Service Solutions Group, Inc. v. AXA Equitable Life Ins. Co., 831 F.Supp.2d 523 (D. Mass. 2011) (holding that co-defendant did not consent to removal within 30-day removal period, and thus removing defendants’ petition for removal was defective requiring remanding to state court)
  • Mead v. ReliaStar Life Ins. Co., 755 F.Supp.2d 515, 537 (D. VT 2010) (holding explaining the record review of insurance company to discredit retained neurologist is a paradigm of arbitrary and capricious decision-making)
  • Jacoby v. Hartford Life and Acc. Ins. Co., 254 F.R.D. 477 (S.D.N.Y. 2009) (Hartford failed to establish that its claims manual and reference manual were confidential)
  • Smith v. Jefferson Pilot Financial Ins. Co., 245 F.R.D. 45 (D. Mass. 2007) (as a matter of first impression in the First Circuit holding that fiduciary exception to attorney-client privilege applied to communications between insurance company personnel and in-house attorney)
  • Giannone v. Metropolitan Life Ins. Co., 311 F.Supp.2d 168, 178 (D. Mass. 2004) (holding substantial evidence means actual evidence, not third-hand speculation about the possible cause of a claimant’s disability.
  • Henry v. National Geographic Society, 147 F.Supp.2d 16 (D. Mass. 2001) (holding material issues of fact, as to whether trip planners which included photographs originally appearing in driving guides were “related” to guides, precluded summary judgment in suit by photographer claiming that publisher breached contract by using copyrighted photographs in unrelated publication)

Significant Published Works

Employee Benefits Law, Bloomberg BNA, Senior Editor. This is the leading treatise on employee benefits.

Tort Trial & Insurance Practices section of the American Bar Association titled, Did The Supreme Court Flunk Constitutional Law When It Permitted Discretionary Review Of Insured ERISA Benefits Cases?

Notable Speaking Engagements

• Massachusetts Continuing Legal Education foundation on ERISA Benefit Claims: A Nuts & Bolts Primer with three other attorneys and United States District Court Judge William G. Young of the United States District Court for the District of Massachusetts. September 2022.
• American Bar Association, Section of Labor and Employment Law Employee Benefits Committee on Updated Current Trends in ERISA Disability Benefits Claim Litigation. June 2021 and February 2021.
  
• Massachusetts Employment Lawyers Association in Boston, Coordination of Employment Severance/Settlement Agreements with Employee Welfare Benefits – Seven Tips for Employment Lawyers. June 2020.
• Western Trial Lawyers Association “Saving Time And Money Under FRE 902(13) And 902(14) Admitting Electronic Evidence” March 2020
• Western Trial Lawyers Association “Tips For Securing Statutory Attorney’s Fees” February 2019
• American Bar Association, Annual Tort Trial & Insurance Practices Midwinter Symposium on Insurance and Employee Benefits in Coral Gables, FL discussing ERISA 502(a)(3) CLAIMS AROUND THE CIRCUITS – January 2018
• American Association for Justice annual convention in Boston on the new Secretary of Labor claims regulations – July 2017
• Massachusetts Employment Lawyers Association Summary Overview of Short-Term-Disability Benefits, Long-Term-Disability Benefits and Co-ordination with Other Benefits and Settlements Under the Employee   Retirement   Security   Act   of   1974 – March 2017
• American Bar Association, Annual Tort Trial & Insurance Practices Midwinter Symposium on Insurance and Employee Benefits in Coral Gables, FL discussing the newly adopted Secretary of Labor Claims regulations – January 2017
• Federal Bar Association (Mass. Chapter)  with US District Court Judge Indira Talwani  at the Massachusetts chapter of the Federal Bar Association on  Changes to the Federal Rules of Civil Procedure since December 1, 2015.- February 2016
• Ogletree Deakins Nash Smoak & Stewart P.C., client seminar in San Antonio, TX where I spoke on ERISA litigation from a plaintiff’s perspective with Mark Schmidtke of Ogletree Deakins who serves as National ERISA Counsel for several large life, health and disability insurers – May 2015.
• Massachusetts Employment Lawyers Association on strategies for seeking attorney’s fees in the Federal Courts – November 2014
• American Bar Association, Joint Committee on Employee Benefits meeting in New Orleans, speaking about drafting plan documents, given AMARA and MCCUTCHEN
• American Association for Justice annual convention Insurance Section speaking on Why Personal Injury Attorneys Must Stop Worrying and Learn to Love ERISA or At Least Understand Reimbursement Provisions in Benefit Plans – July 2013
• American Bar Association,  Annual Tort Trial & Insurance Practices Midwinter Symposium on Insurance and Employee Benefits in St. Pete Beach, FL on Practical Approaches to Conflict Discovery in ERISA Cases: A View from Both Sides of the Aisle – January 2012
• American Conference Institute, National Advanced Forum on Litigating Disability Insurance Claims featured speaker years 2003, 2005, 2006, 2007, 2008 and 2013,
• American Association for Justice on litigation strategies after Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct. 2343 (2008) July 2009.
• Worker Injury Law Group in Scottsdale, AZ speaking about reimbursement claims in connection with ERISA health plans and ERISA long term disability plans October 2009.
• International DI Society in Las Vegas, NV in October 2009 and again in Boston in October 2010 speaking on “list bill” tactics of insurance companies

Professional Associations and Memberships

• American College of Employee Benefits Counsel (ACEBC) – Fellow
• American Association for Justice, Past Chairperson Healthcare and Disability Litigation Group
• American Association for Justice
  
  • Past Chair – Insurance Section
  • Past Chair – ERISA, Health & Disability Insurance Litigation Group
  • Bad Faith Litigation Group
  • Insurance Law Section Executive Committee
• American Bar Association
  
  • Vice Chair  – Torts Trial and Insurance Practice Section
  • Vice Chair – Employee Benefits General Committee
  • Former Chair and current Vice Chair – Health and Disability Insurance Law Committee
  • Vice Chair – Life Insurance Law Committee
  • Vice Chair – ERISA Committee, Vice Chair
  • Vice Chair – Insurance Academy Task Force, Member 2016-2017
  • Vice Chair – Plaintiffs Practice Standing Committee,  2017-2018
  • Vice Chair – Joint Committee on Employee Benefits
• American Bar Association – Lifetime Fellow
• Boston Bar Association – Steering Committee of Solo/Small Firm Section
• California Bar Association
• DC Bar Association
• Director and ERISA Sub-Committee Chair Massachusetts Employment Lawyers Association (MELA)
• Massachusetts Academy of Trial Attorneys
• National Employment Lawyers Association (NELA)
• Patient Advocate Foundation
• Southern Trial Lawyers Association

Honors and Awards

• President’s Award 2014 – Massachusetts Academy of Trial Attorneys
• American Association for Justice 2009 – Outstanding Newsletter of the Year Editor – Insurance Section

Bar Admissions

• Massachusetts, 1985
• District of Columbia, 1987
• California, 1992
• U.S. District Court District of Massachusetts
• U.S. District Court for the Northern District of California
• U.S. District Court of Vermont
• U.S. District Court for the Western District of Michigan
• U.S. Court of Appeals 1st Circuit
• U.S. Court of Appeals 2nd Circuit
• U.S. Court of Appeals 6th Circuit
• U.S. Court of Veterans Appeals

Education

• Suffolk University Law School, Boston, Massachusetts
• University of Vermont, Burlington, Vermont