Opinion
Civil No. 00-1163 ADM/AJB
November 26, 2003
Jordan M. Lewis, Esq., Siegel, Brill, Greupner, Duffy Foster, P.A., Minneapolis, MN, for and on behalf of Plaintiffs
Thomas F. Fitzgerald, Esq., and William F. Hanrahan, Esq., Groom Law Group, Washington, D.C., for and on behalf of Defendants
and David T. Schultz, Halleland Lewis Nilan Sipkins Johnson, P.A., Minneapolis, MN, for and on behalf of Defendants
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Counsel appeared before the undersigned United States District Judge on November 17, 2003, for oral argument on Defendants United HealthCare Services, Inc. and United HealthCare Insurance Company's (collectively, "UHC" or "Defendants") Motion for Order for Certification for Interlocutory Appeal [Docket No. 78]. Defendants seek to appeal two questions of law from the Court's August 28, 2003 Order granting summary judgment to Plaintiffs [Docket No. 76]. For the reasons below, Defendants' Motion is granted.
II. DISCUSSION
28 U.S.C. § 1292(b) provides that a district court may issue an order for an interlocutory appeal if the disputed opinion "involves a controlling question of law as to which there is substantial ground for difference of opinion" and immediate appeal to the circuit court "may materially advance the ultimate termination of the litigation." UHC moves to certify the following questions for interlocutory appeal: "(1) whether a participant or beneficiary may recover `legal restitution' under the `enforce his rights' clause of ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B); and (2) whether `unjust enrichment' is an essential element'" of such a claim. Defs.' Mem. at 1 [Docket No. 79].
With respect to the first question, the Court agrees that the relevant issues are in a state of flux and certification for interlocutory review is appropriate. The Supreme Court's decision in Great-West Life Annuity Ins. Co. v. Knudsoa 534 U.S. 204 (2002), significantly affected the analysis of cases involving § 502(a) of the Employee Retirement Income Security Act ("ERISA"), articulating a distinction between legal and equitable restitution and contrasting the relief available to plan participants or beneficiaries under § 502(a)(1)(B) with that available to fiduciaries in § 502(a)(3) actions. Id. at 213-18, 220-21. By explicitly limiting § 502(a)(3) to equitable restitution, that is, the restoration to the plaintiff of "particular funds or property in the defendant's possession," the Court focused on the specific language of that clause, distinguishing it from the text of § 502(a)(1)(B). Id. at 214, 221. It found Congress' inclusion of the language "equitable relief required bifurcation of the concept of restitution. This analysis and the resulting tight circumscription of the relief available to fiduciaries altered the landscape of § 502 ERISA actions and created an environment ripe for confusion and divergent opinions. Compare Geissal v. Moore Med. Corp., 338 F.3d 926, 932 (8th Cir. 2003) (expressing doubt that § 502(a)(1)(B) authorizes recovery of legal restitution) with Peach v. Ultramar Diamond Shamrock. 229 F. Supp.2d 759, 771 (E.D. Mich. 2002) (commenting with citation toGreat-West that "a request for `legal' [restitution is] available only through § 1132(a)(1)(B)"). Though the Court maintains the practical and legal ramifications of Great-West permit § 502(a)(1)(B) claims for "legal" restitution, this question, which is dispositive of the instant case if resolved in Defendants' favor, is best addressed prior to the expenditure of the time and resources required for further discovery, and is therefore appropriate for interlocutory appeal. 29 U.S.C. § 1292(b).
Although the Court understands Plaintiffs have already endured a lengthy period of litigation, the likely appeal at the conclusion of the damages phase is a strong argument for immediate appeal prior to both sides incurring substantial further legal costs and fees.
Regarding the second issue, the definition and necessity of unjust enrichment in a legal restitution claim presents another question of law about which opinions differ. Though restitution has become a broad principle, it is generally considered as a remedy to avoid unjust enrichment of the defendant. See e.g., Gerosa v. Savasta Co., Inc., 329 F.3d 317, 321 (2d Cir. 2003) (declining to award consequential damages as monetary restitution under § 502(a)(3) because defendant "was never `unjustly enriched'"). Courts, however, have held that unjust enrichment "is not required in every case" and that restitution may be awarded to restore the plaintiff to the position she would have been in "but for the defendant's illegal action." Russell v. Northrop Grumann Corp., 921 F. Supp. 143, 152 (E.D.N.Y. 1996) (quoting Schwartz v. Gregori, 45 F.3d 1017, 1022 (6th Cir. 1995), and Hubbard v. Environmental Protection Agency, 949 F.2d 453, 462 (D.C. Cir. 1991), in characterizing back pay as restitutionary, available relief under § 502(a)(3)). However, even if unjust enrichment is a necessary element, or, in the words of Great-West, restitution is an appropriate remedy for "benefits that [plaintiffs] conferred upon respondents," such a requirement can be squared with the facts of the instant case. 534 U.S. at 214.
While not an explicit holding of the August 28 Order, the facts of this case make clear Plaintiffs' claim did not depend on a showing of direct "unjust enrichment" as Defendants conceptualize it. Because the pharmacies, rather than UHC, retained the overpayments, UHC did not possess the funds Plaintiffs seek to recover. However, the more subtle "benefit [UHC] had received from" Plaintiffs can be found in the relationship between the plan participants, UHC and the pharmacies. Id at 213. As noted in the challenged Order, UHC made representations to and had an understanding with its participating retail pharmacies that they would be permitted to charge UHC's many members the lesser of the retail price or co-payment amount in zero balance due claims and keep the difference above the discounted rate. Order of 8/28/03 at 14-19. UHC thereby received the benefit of the intended commercial exchange; this purported agreement with the pharmacies, however, could not provide a defense to the violation of the plain terms of the members' plans. Id. at 18. Defendants, the authors of the contradictory language in the riders that forms the basis of the entire lawsuit, should therefore be responsible for reimbursing Plaintiffs despite the fact that the overpayments are not and were not in their possession. Nevertheless, as with the issue of legal restitution, the requirement and interpretation of unjust enrichment is another potentially dispositive issue on which courts differ. The relationship of this issue with the availability of legal restitution as an ERISA remedy further militates toward certifying the question for immediate appeal.
III. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that: Defendants' Motion for Order for Certification for Interlocutory Appeal [Docket No. 78] is GRANTED and the Mowing questions are CERTIFIED FOR INTERLOCUTORY APPEAL:1. Whether or not a participant or beneficiary may recover "legal restitution" under the "enforce his rights" clause of ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B); and
2. Whether or not "unjust enrichment" is an essential element of a claim for legal restitution under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B).