You’ve negotiated a good settlement for your client. But now the 
client’s health plan wants to be reimbursed for the medical benefits it 
paid. Can the plan’s lien be defeated—or negotiated down?

			
			Once largely ignored, ERISA liens have become formidable 
obstacles to settlement and client satisfaction.1 Plaintiff attorneys cannot 
afford to overlook their impact. They can lay claim to most or even all of 
the proceeds from settlement of, for example, a personal injury case 
involving an auto accident where the plaintiff received benefits from an 
ERISA health plan.

            To make matters worse, many states’ ethical opinions and rules 
of professional conduct can now be read to impose a duty to hold disputed 
funds (such as lien amounts) in the attorney’s trust account and even to 
notify the ERISA lien holder of settlement.2 These developments present an 
alarming challenge to the traditional view that an attorney owes no duties 
to the lien holder. The presence and size of a potential ERISA lien must now 
be considered when determining whether to even take a case.

            What caused this change? In 2006, the Supreme Court’s decision 
in Sereboff v. Mid Atlantic Medical Services, Inc., gave ERISA liens some 
very large teeth by holding that ERISA plans can enforce complete 
reimbursement of their liens.3 The case originated in California, where 
Marlene Sereboff and her husband, Joel, received health insurance under her 
employer-sponsored plan. Mid Atlantic Services administered the plan, which 
was covered by ERISA.

            The plan’s “acts of third parties” provision stated that if the 
Sereboffs received benefits for an injury or illness and later recovered 
damages related to a tort claim against a third party for that injury or 
illness, the Sereboffs would have to reimburse Mid Atlantic Services for the 
benefits they had received. The provision also stated that Mid Atlantic’s 
share of the recovery would not be reduced if the Sereboffs did not receive 
the full damages claimed.

            The Sereboffs were injured in a car accident, and the plan paid 
about $75,000 of the couple’s medical expenses. They sued several third 
parties, seeking damages for their injuries. Shortly thereafter, Mid 
Atlantic notified the Sereboffs that it was asserting a lien on any recovery 
they received. The Sereboffs settled the lawsuit for $750,000 but did not 
pay anything to Mid Atlantic.

            Mid Atlantic sued to enforce the lien under §502(a)(3) of ERISA, 
claiming that it was entitled to reimbursement as a matter of equity. That 
section of the statute permits a lawsuit to enjoin any act or practice that 
violates the terms of a plan, or to obtain “other appropriate equitable 
relief” to enforce the terms of the plan. The trial court found in the 
company’s favor and the Sereboffs appealed, arguing that Mid Atlantic’s 
claim was actually for breach of contract, not equitable relief—the only 
type of relief granted under §502(a)(3). The Fourth Circuit affirmed, ruling 
that Mid Atlantic’s suit was one seeking equitable relief, and a unanimous 
Supreme Court agreed.

            Sereboff has emboldened ERISA plan administrators everywhere and 
led to sobering interpretations by federal courts.4 In light of the 
decision, courts have ruled that ERISA liens can trump a catastrophically 
injured plaintiff’s need for lifetime care,5 consume a special-needs trust,6 
and lay claim to an entire settlement—including attorney fees.7 One recent 
decision that looked like a solid win for plaintiff counsel—holding that an 
ERISA lien cannot be recovered from a minor’s special-needs trust—depended 
more on procedural technicalities than substantive ERISA law and should not 
be given widespread reliance.8

            ERISA subrogation has thus become a minefield for plaintiff 
attorneys. If a valid lien is not adequately satisfied, you risk a lawsuit 
against your client or yourself. Although a plaintiff attorney is generally 
not considered a plan fiduciary,9 you may still be sued by a plan 
administrator.10 You may also be liable for the amount of your attorney fees 
if your client has signed a reimbursement agreement, even though you 
yourself were not a party to it.11 Moreover, if you counsel or assist your 
client in subverting a valid ERISA claim through deceit or dishonesty, you 
can also be liable to the plan.12

            Thus, even though an attorney is not a party to the ERISA plan, 
he or she may still be held liable in a number of ways. Conversely, if you 
mistakenly pay an invalid lien, you have committed malpractice against your 
client. If you disburse the settlement before the lien is resolved, you risk 
ethical sanctions as well.

            Throughout, you must advise and counsel your client that the 
lien might consume a large portion (and possibly all) of any potential 
settlement. These dangers are not what the average plaintiff attorney 
bargains for when taking a case, and it is crucial that ERISA liens be dealt 
with properly.13

            Getting started

            The first thing you will probably want to know is whether you 
owe any obligation to ERISA lien holders. Must you notify ERISA plans of 
third-party claims? Can you simply disburse the settlement funds to clients 
and leave them to work out liens on their own?

            The answers to these questions are changing in light of the 
Sereboff decision and developing state ethical rules. These sources indicate 
an emerging duty to ERISA lien holders. State ethics opinions are imposing a 
duty to hold disputed funds (here, the lien amount) in the attorney’s trust 
account until the lien is resolved.14

            Therefore, the release of settlement proceeds to your client in 
the face of a potential ERISA lien could give rise to two separate 
complaints against you: an ethical complaint based on an alleged violation 
of a state’s rules of professional conduct,15 and another complaint seeking 
the remedies prescribed by 29 U.S.C. §1132(a)(3).16 You should be aware of 
these possibilities and act accordingly.

            ERISA governs virtually all private employee health plans.17 
When your client’s employee health plan asserts a lien on the settlement 
funds, it is likely to be an ERISA lien. However, there are some exceptions 
to this rule, such as government employee plans (federal, state, and local) 
and church employee plans.18

            The summary plan description (SPD) is the plain-language summary 
of the plan that the administrator is obligated to furnish to each 
participant.19 It is the roadmap to the lien’s validity and vulnerability to 
defenses. Obtaining a copy early is crucial.

            The SPD is intended to be a summary of the plan, rather than a 
full recitation of its terms. For this reason, it is impossible that the SPD 
“anticipate every possible idiosyncratic contingency that might affect a 
particular participant’s” eligibility for benefits.20

            Because the SPD cannot capture every detail of the entire health 
benefit plan, there is sometimes a conflict between what is contained in the 
plan and what is contained in the SPD. If the SPD does not contain specific 
subrogation language, it is important to understand what courts in the 
applicable jurisdiction have said about which document—the full plan 
document or the SPD—controls the plan’s lien rights.21

            In most cases, it is reasonable to treat the SPD as though it is 
the controlling document; however, on more difficult liens it is wise to 
demand and review a copy of the entire plan as well.22 As soon as you 
receive notice of a potential lien, you should make a written request for 
the SPD and other necessary documents as discussed below.

            Ascertaining enforceability

            There are two basic types of ERISA health plans: insured and 
self-funded. An insured plan is a health plan where the employer has 
purchased a group insurance policy for its employees from a health insurance 
carrier. A self-funded ERISA plan is one in which the employer completely 
funds the plan and pays for employee health care with its own assets. These 
two types of plans and their liens are treated differently under ERISA, due 
to somewhat confusing rules as to when that federal body of law preempts 
state insurance law and when it works in tandem with state law.

            The general rule is that ERISA preempts state law in the 
governance of employee health plans.23 However, the exception is found in 
ERISA’s “saving clause,” under which state laws regulating insurance are 
saved from the sweep of federal preemption.24 This clause greatly narrows 
the scope of ERISA preemption where health insurance carriers are concerned.

            The saving clause provides that health insurance carriers—and 
the group health insurance policies they sell to employers—are subject to 
state law. Thus, claims based on an employee health plan purchased through a 
health insurance carrier are governed by both state law and ERISA.

            However, the “deemer clause,” which immediately follows the 
saving clause, provides that a self-funded employee benefit plan is not to 
be considered (or “deemed”) an insurance company.25 Application of this 
somewhat circular statutory language creates the result that self-funded 
ERISA plans are not subject to state law but health insurance carriers and 
insured ERISA plans are.26 Because of this distinction, determining whether 
an ERISA plan is self-funded or insured is of great importance.

            Self-funded ERISA plans are exempt from state law regulation. 
Because self-funded plans are not connected to an insurance company, they 
benefit from ERISA preemption. As the Supreme Court said in FMC Corp. v. 
Holliday, “State laws that directly regulate insurance . . . do not reach 
self-funded employee benefit plans because the plans may not be deemed to be 
insurance companies, other insurers, or engaged in the business of insurance 
for purposes of such state laws.”27

            Insured ERISA plans are subject to state law regulation. When an 
insured plan asserts a lien against a personal injury settlement, it is the 
insurer—not the plan—that is attempting to recoup its expenses. Holliday 
again: “An insurance company that insures a plan remains an insurer for 
purposes of state laws purporting to regulate insurance after application of 
the deemer clause.”28

            Of course, the insurance company is not relieved from state 
insurance regulation. This was confirmed in Holliday, where the Supreme 
Court interpreted the deemer clause to mean that “if a plan is insured, a 
state may regulate it indirectly through regulation of its insurer and its 
insurer’s insurance contracts; if the plan is uninsured, the state may not 
regulate it.”29

            Given the distinction between insured and self-funded plans, the 
question arises of how to treat a plan that is self-funded but has also 
purchased excess or “stop-loss” insurance to cover large, unexpected claims. 
Does the purchase of this type of insurance make an otherwise self-funded 
plan “insured” for the purposes of ERISA preemption?

            In a word, no. The U.S. Department of Labor (DOL) has taken the 
position that merely obtaining a stop-loss insurance policy will not cause a 
plan to lose its self-funded status for ERISA preemption purposes.30 
Although the Supreme Court has not addressed the issue, the DOL’s view 
appears to be uniformly adopted throughout the federal circuits, meaning 
that the terms of ERISA and the provisions of the plan will still preempt 
state law despite the presence of stop-loss insurance.31

            Determining whether the ERISA plan is insured or self-funded 
will tell you what rules you’re playing by: federal law exclusively or state 
law as well. This is crucial to evaluating the strength of a lien. State 
insurance statutes and common law will often offer equitable defenses 
against the lien that are not available under the purely federal law of 
ERISA. Thus, it is critical to determine whether the ERISA plan is insured 
and to be familiar with state subrogation law.

            The SPD is required to disclose the funding arrangement of the 
plan.32 However, not all plan administrators comply with this rule. Some 
fail to disclose at all, while others—innocently or otherwise—have been 
known to claim self-funded status when their plans are, in fact, insured. 
The SPD should not be relied on as the final word on this crucial matter.

            Another resource to check is the plan’s Form 5500, which must be 
filed each year with the DOL and must declare the appropriate funding 
status. Many (but not all) of these documents may be found online at the 
site www.freeerisa.com by searching the Form 5500 filings by employer name. 
If the Form 5500 cannot be located in this way, it can always be requested 
from the plan administrator under 29 U.S.C. §1024(b)(4).

            Also, if the plan administrator acknowledges that an insurance 
company is connected to the plan but asserts that the insurer plays merely 
an administrative role, request a copy of the administrative service 
contract between the employer and the insurer. Take the time to thoroughly 
investigate the funding status of the plan—it could make a considerable 
difference in the plan’s right of recovery when it tries to go after your 
client’s settlement proceeds.

            ERISA plans often try to enforce their lien against a plan 
beneficiary’s third-party recovery assets with the argument that, because 
federal law applies, your client must satisfy the lien in full. This 
argument is often merely a scare tactic.

            ERISA carries requirements of its own that a lien must satisfy 
to be enforceable. Some of these requirements are applied universally; 
however, others are interpreted with dramatically different results among 
the federal circuits. An ERISA lien might be fully enforceable in one 
circuit and completely unrecoverable in another.

            For example, the Sixth Circuit has adopted the “make-whole” 
doctrine as the default rule, effectively barring recovery of an ERISA lien 
unless the plan has specifically rejected the make-whole rule in the plan 
contract.33 However, the Fourth Circuit has taken the opposite position that 
the doctrine never applies, making the same lien fully enforceable.34

            As noted above, if the ERISA plan is insured, state defenses may 
also affect the plan’s ability to recover its lien and should be understood. 
Again, these laws vary widely from state to state.

            For example, an insured plan in Kentucky could still enforce its 
lien in full. However, that same plan in Virginia would be unable to enforce 
its subrogation right due to that state’s anti-subrogation statute, allowing 
you to disregard the lien altogether.35 Thus, a state or circuit boundary 
can make a significant difference in the right of reimbursement.

            Defining defenses

            Once you’ve obtained a copy of the SPD and understand your 
jurisdiction’s stance on the issues, you can develop a strategy for 
addressing the lien. This strategy should be based on the defenses that are 
available given the language of the SPD and the applicable law. A few 
defenses are universal; others depend on the jurisdiction. The following are 
the most common defenses.

            The specific-fund doctrine. In Sereboff, the Court held that an 
ERISA carrier is able to enforce its plan’s third-party recovery provision 
under federal law as long as the plan “specifically identifie[s] a 
particular fund, distinct from [the plan beneficiaries’] general assets 
[namely, the settlement proceeds themselves] . . . and a particular share of 
that fund to which [the plan] was entitled [meaning up to the amount the 
plan paid for injury-related care].”36 This language is critical to all 
ERISA plans, and it will make or break an ERISA lien right from the start.

            The reason for this lies in the type of lien-related relief 
allowed by ERISA. The statute provides that a plan may seek only “equitable 
relief” to enforce its terms.37 The equitability of the relief sought stands 
as the basis for the Court’s decision in Sereboff and the previously 
controlling decision of Great-West Life & Annuity Insurance Co. v. 
Knudson.38 In both cases, the Court attempted to decipher what Congress 
meant by “equitable relief.”

            In Great-West, the ERISA lien was held unenforceable because the 
third-party recovery provision of the plan at issue did not specify a 
particular fund from which to recover the lien. Rather, it sought legal 
restitution from the client’s general assets.39 The Court held that such 
relief was “legal” rather than “equitable,” and not permissible under ERISA.

            Echoing the ruling in Great-West, the Sereboff Court found that 
one feature of equitable restitution is the imposition of a “constructive 
trust” or “equitable lien” on “particular funds or property in the [client’s] 
possession.”40 However, Sereboff was distinguished from Great-West in two 
ways. First, the settlement funds had been set aside pending the resolution 
of the case and were still in the Sereboffs’ possession and control.41 
Second, the Court found that the plan language justified equitable 
restitution for two reasons: The plan specifically identified the settlement 
proceeds—apart from the Sereboffs’ general assets—as being subject to its 
lien; and the plan limited its right of recovery to only the amount it had 
paid for injury-related care, as opposed to the settlement as a whole.42

            By identifying a specific fund from which it would claim 
reimbursement (the settlement), and limiting that reimbursement to the 
amount to which it was equitably entitled (the amount it had paid for 
injury-related care), the plan had created a “constructive trust” on that 
portion of the settlement. In essence, the Sereboff Court concluded that 
that portion of the settlement rightfully belonged to the plan, and its 
recovery was therefore equitable.43

            When analyzing the language of an ERISA plan that is asserting a 
lien against a client, examine the third-party recovery provision closely. 
If the language does not identify a specific fund to which it is 
entitled—namely, the settlement proceeds—or does not limit the plan’s 
recovery to the amount it has paid for injury-related care and is thus 
rightfully entitled to, then under Sereboff the lien is unenforceable.

            The make-whole doctrine. This doctrine is, by and large, a 
common law rule that limits an insurer’s right of subrogation. The Fourth 
Circuit has explained it this way:

              Generally, under the doctrine, an insurer is entitled to 
subrogation of an insured’s recovery against a third party only to the 
extent that the combination of the proceeds the insurer has already paid to 
the insured and the insured’s recovery from the third party exceed the 
insured’s actual damages. In other words, the insured must be made whole 
before the insurer can exercise his right of subrogation.44

            There currently exists a circuit split as to whether the 
make-whole doctrine should be applied as the default rule in ERISA 
subrogation. The Fourth Circuit recently rejected the doctrine as the 
default rule, reasoning that “such a rule would frustrate the purposes of 
ERISA by requiring plan drafters to inject legalese into plans rather than 
use clear, ordinary language explaining the plan’s provisions.”45 Other 
circuits taking a similar position include the First, Third, and Eighth.46

            However, some circuits do apply the make-whole doctrine to ERISA 
liens. The Ninth Circuit clearly adopted the doctrine as the default rule, 
stating that “in the absence of a clear contract provision to the contrary, 
an insured must be made whole before an insurer can enforce its right to 
subrogation.”47 Other federal courts of appeals using the doctrine as the 
default rule include the Sixth, Seventh, and Eleventh Circuits.48 Many 
states also apply the doctrine against insured plans.49

            In jurisdictions supporting the make-whole doctrine, it is 
generally considered only a default rule that can be abrogated by specific 
plan language. “If a plan sets out the extent of the subrogation right or 
states that the participant’s right to be made whole is superseded by the 
plan’s subrogation right, no silence or ambiguity exists,” the Sixth Circuit 
has said.50 The policy language abrogating the doctrine must be conspicuous, 
plain, and clear so that it is understood by the beneficiary.51 Otherwise, 
the doctrine will apply. Once again, close inspection of the plan language 
is essential.

            If the make-whole doctrine does not apply or has been properly 
abrogated by the plan, a well-crafted ERISA plan could be entitled to most 
or even all of the client’s settlement proceeds if the settlement amount isn’t 
large enough to satisfy the lien. In these cases, you must rely on your 
negotiating skills, as the law may not offer your client a defense against 
the lien. You should also notify your client of this possibility, as it will 
likely affect the client’s incentive to pursue the claim.

            The “common-fund” or “common-benefit” doctrine. This doctrine 
demands that the lien holder contribute to attorney fees. According to the 
Seventh Circuit, the underlying theory is that to “allow [the insurer] to 
obtain full benefit from the plaintiff’s efforts without contributing 
equally to the litigation expenses would be to enrich [it] unjustly at the 
plaintiff’s expense.”52 Reductions for attorney fees are virtually routine 
with respect to other liens, which is why many attorneys expect the same of 
ERISA liens. However, the majority of federal circuits have ruled that an 
ERISA plan need not contribute to attorney fees where its own plain language 
gives it an unqualified right to reimbursement.53

            Even if the plan is ambiguous or silent on the matter of 
attorney fees, the question of whether the plan must contribute to the fees 
is still unsettled. As the Eighth Circuit has put it, silence on the issue 
of fees may mean two things: that the plan is always entitled to all of its 
claims for reimbursement regardless of the results such a rule could 
produce, or that the plan will pay reasonable fees and expenses providing 
some support and incentive to the plan’s beneficiaries to move forward with 
their claims, to which the plan will be partially subrogated.54

            Even though a plan might not explicitly highlight its exemption 
from attorney fees, various circuits are finding that plan language can be 
clear enough to put plan participants on notice of that exemption. The Third 
Circuit, for example, has stated that “it would be inequitable to permit 
[the participants] to partake of the benefits of the plan and then, after 
they had received a substantial settlement, invoke common law principles to 
establish a legal justification for their refusal to satisfy their end of 
the bargain.”55 Thus, even if a self-funded plan is silent on the matter, 
the ERISA lien may not have to be reduced for attorney fees.

            Negotiating the perfect lien

            It is entirely possible for an ERISA plan to have a fully 
enforceable lien in place. Savvy plan counsel are likely to ensure that the 
magic subrogation words are contained in the plan documents, so you should 
not expect to rely on poorly drafted subrogation provisions in many cases. 
Also, you might find yourself in an unfavorable jurisdiction.

            If the plan language is solid, and all possible defenses are 
either unavailable or have been abrogated by the plan’s terms, the plan can 
legally demand full payment of the lien. In this event, there are many 
negotiation tactics to be tried, and others to be avoided.

            The wrong approach is to belligerently refuse to cooperate. 
Before Sereboff, this tactic might have proven successful; however, given 
Sereboff’s clarity on the rights of enforceability, such an approach invites 
trouble. Refusal to satisfy a valid lien can endanger the client’s future 
benefits and risk litigation by the lien holder. If this approach damages 
your client’s interests, it also raises issues of professional liability 
against you.

            An attitude of cooperative negotiation with the lien holder can 
go a long way. If you have verified that the plan has a right to recovery, 
acknowledge that right, but discuss other considerations as well: The plan 
administrator might consider the facts of the case, your client’s injury and 
loss, or whether the client has dependents.

            Above all, keep your client informed of the possible outcomes to 
encourage realistic expectations. If an ERISA lien is large enough to lay 
claim to most or all of the settlement, your client should be informed 
immediately, as this will affect his or her incentive to pursue the case. 
This can also be used as leverage against the ERISA lien, because if your 
client doesn’t recover anything, neither does the lien holder.

            The legal and ethical ramifications of the Sereboff decision 
loom large over plaintiff attorneys at a time when that decision has also 
made ERISA liens substantially more difficult. With a strong knowledge of 
the law and a calculated approach, many ERISA liens can be resolved 
beneficially; others, however, may prove to be legally unassailable.

            Nonetheless, all ERISA liens must be treated with respect, and 
they may require nearly as much attention as the underlying liability claim 
if you want to protect yourself against legal and ethical liability. Failing 
to give these liens adequate attention may expose you to such liability and 
could have serious ramifications for your client.

            Peter H. Wayne IV of Louisville, Kentucky, and Mark R. Taylor of 
Salt Lake City are both directors of the Garretson Law Firm and of regional 
offices of the Garretson Firm Lien Resolution Center. They can be reached at 
phw@garretsonfirm.com and at mtaylor@garretsonfirm.com.


            Notes

              1.. The Employee Retirement Income Security Act of 1974, 29 
U.S.C. §§1001-1461 (2000), governs many employee health and welfare plans in 
addition to retirement plans.

              2.. ABA Model R.1.15 (D) (2002); see also Iowa R. Prof. 
Conduct 32:1.15 (2005).

              3.. 126 S. Ct. 1869 (2006).

              4.. See e.g. Admin. Comm. of Wal-Mart Stores, Inc. v. Shank, 
2007 WL 2457664 (8th Cir. Aug. 31, 2007); Admin. Comm. for Wal-Mart Stores, 
Inc. v. Salazar, 2007 WL 2409513 (D. Ariz. Aug. 20, 2007); Brown v. Assocs. 
Health & Welfare Plan, 2007 WL 2350323 (W.D. Ark. Aug.16, 2007).

              5.. See Salazar, 2007 WL 2409513.

              6.. See Shank, 2007 WL 2457664.

              7.. See Brown, 2007 WL 2350323.

              8.. Mills v. London Grove Township, 2007 WL 2085365 (E.D. Pa. 
July 19, 2007). The court was asked to approve the personal injury 
settlement of a minor where the net proceeds were to be placed into a 
special-needs trust but were also subject to an outstanding ERISA lien. The 
court found the lien unenforceable because the ERISA plan sought to recover 
the lien from the minor’s parents, while the settlement proceeds would 
directly pass into the trust. However, in the opinion of these authors, if 
the plan had simply waited until the funds were placed in the trust, and 
then filed an action against it, the lien would likely have been recoverable 
as allowed by numerous other courts. Several other procedural 
technicalities, rather than substantive law, also informed the Mills court’s 
decision. Thus, an attorney relying on this case alone as a defense to an 
ERISA lien takes a precarious legal position.

              9.. See Chapman v. Klemick, 3 F.3d 1508, 1510-11 (11th Cir. 
1993).

              10.. See Great-West Life & Annuity Ins. Co. v. Smith, 180 F. 
Supp. 2d 1311 (M.D. Fla. 2002).

              11.. See Trustees of Teamsters Local Union No. 443 v. Papero, 
485 F. Supp. 2d 67, 71 (D. Conn. 2007).

              12.. Greenwood Mills, Inc. v. Burris, 130 F. Supp. 2d 949, 
957-61 (M.D. Tenn. 2001).

              13.. ERISA is, as the Supreme Court describes it, an 
“enormously complex and detailed” statute. E.g. Hughes Aircraft Co. v. 
Jacobson, 525 U.S. 432, 447 (1999). An article of this length cannot provide 
all the background necessary to properly evaluate the merits of an ERISA 
plan’s asserted lien; it can only provide a primer to assist a plaintiff 
attorney in identifying the issues and possible pitfalls that may be 
involved. More research, and possibly even consultation with an ERISA 
lawyer, may be needed.

              14.. See e.g. Va. Legal Ethics Op. 1747 (2000). Read narrowly, 
this opinion interprets Rule 1.15 of Virginia’s Rules of Professional 
Conduct as placing a legal obligation on an attorney to not deliver disputed 
settlement funds to a client when a third party has a valid statutory lien, 
contract, or court order that grants an interest in the funds. However, the 
opinion invites broader interpretation of the rule to include agreements or 
laws (such as ERISA) creating a legal obligation to deliver those funds to 
another.

              15.. Controversy exists over whether an ethical violation can 
arise under this fact scenario, but the authors thought it important to 
bring it to the readers’ attention. See Webster v. Powell, 391 S.E.2d 204 
(N.C. App.1990); Shapiro v. McNeill, 699 N.E.2d 407 (N.Y. 1998) (holding 
that a breach of a provision of the Code of Professional Responsibility is 
not “in and of itself” a basis for civil liability—though it may be a 
contributing factor); Va. Legal Ethics Op. 1747 (2000).

              16.. See Greenwood Mills, Inc., 130 F. Supp. 2d at 957-61; 
Great-West Life & Annuity Ins. Co., 180 F. Supp. 2d at 1313.

              17.. 29 U.S.C. §1003 (2000).

              18.. Id.

              19.. 29 U.S.C. §1022. The information that must be contained 
in the SPD is set forth in the statute at §1022(a)-(b), §1024.

              20.. Tocker v. Philip Morris Cos., 470 F.3d 481, 488 (2d Cir. 
2006).

              21.. See Burke v. Kodak Ret. Income Plan, 336 F.3d 103, 113-14 
(2d Cir. 2003) (SPD controlled); Aiken v. Policy Mgmt. Sys. Corp., 13 F.3d 
138, 141 (4th Cir. 1993) (SPD controlled); Branch v. G Bernd Co., 955 F.2d 
1574, 1579 (11th Cir. 1992) (plan controlled); Edwards v. State Farm, 851 
F.2d 134, 137 (6th Cir. 1988) (SPD controlled).

              22.. 29 U.S.C. §1024(b)(4). A plan beneficiary can request a 
copy of the SPD and other plan-related documents from the plan administrator 
at any time. The administrator must provide these documents within 30 days 
on written request or risk a $100-per-day penalty. See 29 U.S.C. 
§1132(c)(1).

              23.. 29 U.S.C. §1144(a).

              24.. 29 U.S.C. §1144(b)(2)(A).

              25.. 29 U.S.C. §1144(b)(2)(B).

              26.. See Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 
746-47 (1985).

              27.. 498 U.S. 52, 61 (1990).

              28.. Id. (internal quotations omitted).

              29.. Id. at 64.

              30.. Dept. of Labor Op. Ltr., No. 91-05A (Jan. 14, 1991).

              31.. See e.g. Lincoln Mut. Cas. Co. v. Lectron Prods., 970 
F.2d 206, 210 (6th Cir.1992); United Food Health & Welfare Trust v. Pacyga, 
801 F.2d 1157, 1161-62 (9th Cir.1986).

              32.. 29 U.S.C. §1022(b).

              33.. Copeland Oaks v. Haupt, 209 F.3d 811, 813 (6th Cir. 
2000).

              34.. In re Paris, 211 F.3d 1265 (table), 2000 WL 384036 at *3 
(4th Cir. 2000).

              35.. Va. Code Ann. §38.2-3405 (2006).

              36.. Sereboff, 126 S. Ct. at 1875.

              37.. 29 U.S.C. §1132(a)(3).

              38.. 534 U.S. 204 (2002).

              39.. The settlement funds in Great-West had been placed in a 
special-needs trust before the lien was asserted and were no longer in the 
beneficiary’s control. Id. at 207-08.

              40.. Sereboff, 126 S. Ct. at 1874 (emphasis added).

              41.. Id. at 1872.

              42.. Id. at 1875.

              43.. The Sereboff Court invoked “the familiar rule of equity 
that a contract to convey a specific object even before it is acquired will 
make the contractor a trustee as soon as he gets a title to the thing.” Id.

              44.. In re Paris, 2000 WL 384036 at *1, n. 1.

              45.. Id. at *3.

              46.. Harris v. Harvard Pilgrim Health Care, Inc., 208 F.3d 
274, 280-81 (1st Cir. 2000); Bill Gray Enters., Inc., Employee Health & 
Welfare Plan v. Gourley, 248 F.3d 206, 220 (3d Cir. 2001); Waller v. Hormel 
Foods Corp., 120 F.3d 138, 140 (8th Cir. 1997).

              47.. Barnes v. Ind. Auto Dealers Benefit Plan, 64 F.3d 1389, 
1395 (9th Cir. 1995).

              48.. Copeland Oaks, 209 F.3d at 813; Cutting v. Jerome Foods, 
Inc., 993 F.2d 1293, 1297-98 (7th Cir. 1993); Cagel v. Bruner, 112 F.3d 
1510, 1521 (11th Cir. 1997).

              49.. See e.g. California (Plut v. Fireman’s Fund Ins. Co., 102 
Cal. Rptr. 2d 36, 40 (Cal. App. 2000)); Georgia (Ga. Code §33-24-56.1 
(2000)); New Jersey (O’Brien v. Two West Hanover Co., 795 A.2d 907, 914 
(N.J. Super. App. Div. 2002)).

              50.. Copeland Oaks, 209 F.3d at 813.

              51.. See Saltarelli v. Bob Baker Group Med. Trust, 35 F.3d 
382, 386 (9th Cir. 1994).

              52.. Gaffney v. Riverboat Servs. of Indiana, Inc., 451 F.3d 
424, 466-67 (7th Cir. 2006).

              53.. Kress v. Food Employers Labor Relations Assn., 291 F.3d 
563, 569 (4th Cir. 2004); Harris, 208 F.3d at 279; Walker v. Wal-Mart 
Stores, Inc., 159 F.3d 938, 940 (5th Cir. 1998); Ryan v. Federal Express 
Corp., 78 F.3d 123, 127 (3d Cir. 1996).

              54.. Waller, 120 F.3d at 141. The court went on to decide that 
the plan’s subrogation recovery should be reduced by a reasonable amount of 
attorney fees.

              55.. Ryan, 78 F.3d at 127-28.