David Wit v. United Behavioral Health

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DAVID WIT; NATASHA WIT; Nos. 20-17363
BRIAN MUIR; BRANDT PFEIFER, 21-15193
on behalf of the Estate of his deceased
wife, Lauralee Pfeifer; LORI D.C. No. 3:14-
FLANZRAICH, on behalf of her cv-02346-JCS
daughter Casey Flanzraich; CECILIA
HOLDNAK, on behalf of herself, her
daughter Emily Holdnak; GARY ORDER AND
ALEXANDER, on his own behalf and OPINION
on behalf of his beneficiary son,
Jordan Alexander; CORINNA
KLEIN; DAVID HAFFNER, on
behalf of themselves and all others
similarly situated,

Plaintiffs-Appellees,

LINDA TILLITT; MARY JONES,

Intervenor-Plaintiffs-
Appellees,

v.

UNITED BEHAVIORAL HEALTH,

Defendant-Appellant.
2 WIT V. UNITED BEHAVIORAL HEALTH

GARY ALEXANDER, on his own Nos. 20-17364
behalf and on behalf of his beneficiary 21-15194
son, Jordan Alexander; CORINNA
KLEIN; DAVID HAFFNER, on D.C. No. 3:14-
behalf of themselves and all others cv-05337-JCS
similarly situated,

Plaintiffs-Appellees,

MICHAEL DRISCOLL,

Intervenor-Plaintiff-
Appellee,

v.

UNITED BEHAVIORAL HEALTH,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Joseph C. Spero, Magistrate Judge, Presiding

Argued and Submitted August 11, 2021
San Francisco, California

Filed August 22, 2023
 WIT V. UNITED BEHAVIORAL HEALTH 3

Before: Morgan Christen and Danielle J. Forrest, Circuit
Judges, and Michael M. Anello, * District Judge.

Order;
Opinion by Judge Anello

SUMMARY **

Employee Retirement Income Security Act

The panel filed (1) an order vacating a prior opinion,
replacing it with a new opinion, granting a petition for panel
rehearing, and denying as moot a petition for rehearing en
banc; and (2) an opinion affirming in part and reversing in
part the district court’s judgment, after a bench trial, finding
United Behavioral Health (“UBH”) liable under ERISA for
breach of fiduciary duties and wrongful denial of benefits,
and awarding declaratory and injunctive relief, to three
classes of plaintiffs who were beneficiaries of ERISA-
governed health benefit plans for which UBH was the claims
administrator.
The panel held that plaintiffs had Article III standing to
bring their claims. Plaintiffs sufficiently alleged a concrete
injury as to their fiduciary duty claim because UBH’s
alleged violation presented a material risk of harm to
plaintiffs’ interest in their contractual benefits. Plaintiffs

*
The Honorable Michael M. Anello, United States District Judge for the
Southern District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 WIT V. UNITED BEHAVIORAL HEALTH

also alleged a concrete injury as to the denial of benefits
claim. Further, plaintiffs alleged a particularized injury as to
both claims because UBH’s Level of Care Guidelines and
Coverage Determination Guidelines for making medical
necessity or coverage determinations materially affected
each plaintiff. And plaintiffs’ alleged injuries were “fairly
traceable” to UBH’s conduct.
The panel held that the district court did not err in
certifying the three classes to pursue the fiduciary duty
claim, but the panel reversed the district court’s certification
of the denial of benefits classes. The panel held that, by
certifying the denial of benefits classes without limiting the
classes to those with claims that UBH denied under a
specific Guidelines provision or provisions challenged in
this litigation that applied to the claimant’s own request for
benefits, the certification order improperly enlarged or
modified plaintiffs’ substantive rights in violation of the
Rules Enabling Act.
The panel held that, on the merits, the district court erred
to the extent it determined that the ERISA plans required the
Guidelines to be coextensive with generally accepted
standards of care. The panel therefore reversed the judgment
on plaintiffs’ denial of benefits claim. To the extent the
judgment on plaintiffs’ breach of fiduciary duty claim was
based on the district court’s erroneous interpretation of the
ERISA plans, it was also reversed.
The panel remanded for the district court to answer the
threshold question of whether the fiduciary duty claim was
subject to the plans’ administrative exhaustion requirement
and, if so, whether the requirement was satisfied by unnamed
class members or should otherwise be excused.
 WIT V. UNITED BEHAVIORAL HEALTH 5

COUNSEL

Miguel A. Estrada (argued), Geoffrey M. Sigler, Lucas C.
Townsend, and Matthew S. Rozen, Gibson Dunn & Crutcher
LLP, Washington, D.C.; Jennifer S. Romano and Andrew
Holmer, Crowell & Moring LLP, Los Angeles, California;
April N. Ross, Crowell & Moring LLP, Washington, D.C.;
Nathaniel P. Bualat, Crowell & Moring LLP, San Francisco,
California; for Defendant-Appellant.
Caroline E. Reynolds (argued), David A. Reiser, and
Andrew N. Goldfarb, Zuckerman Spaeder LLP,
Washington, D.C.; D. Brian Hufford and Jason S. Cowart,
Zuckerman Spaeder LLP, New York, New York; Adam
Abelson, Zuckerman Spaeder LLP, Baltimore, Maryland;
Meiram Bendat, Meiram Bendat, Santa Barbara, California;
John R. Stokes and Peter K. Stris, Stris & Maher LLP, Los
Angeles, California; Colleen R. Smith, Stris & Maher LLP,
Washington, D.C.; for Plaintiffs-Appellees.
Mark D. DeBofsky, DeBofsky Sherman Casciari Reynolds
PC, Chicago, Illinois, for Amici Curiae National Association
for Behavioral Healthcare, American Hospital Association,
American Association for Treatment of Opioid Dependence,
American Psychological Association, California Hospital
Association, Federation of American Hospitals, National
Association of Addiction Treatment Providers, National
Council for Mental Wellbeing, and REDC Consortium
Jack R. Bierig, Alison L. Andersen, Neil Lloyd, and Wendy
Qiu, Arentfox Schiff LLP, Chicago, Illinois, for Amici
Curiae American Psychiatric Association, American
Medical Association, California Medical Association, and
American Psychiatric Association California District
Branches.
6 WIT V. UNITED BEHAVIORAL HEALTH

Abigail K. Coursolle and Elizabeth Edwards, National
Health Law Program, Los Angeles, California; Kevin
Costello, Center for Health Law & Policy Innovation,
Harvard Law School, Cambridge, Massachusetts; for Amici
Curiae National Health Law Program et. al..
Aaron M. Panner and Eric J. Maier, Kellogg Hansen Todd
Figel & Frederick PLLC, Washington, D.C.; for Amici
Curiae American Psychiatric Association, American
Medical Association, California Medical Association, and
California State Association of Psychiatrists.
Joshua B. Simon, Warren Haskel, and Richard Diggs,
McDermott Will & Emery LLP, New York, New York;
Michael B. Kimberly and Sarah P. Hogarth, McDermott
Will & Emery LLP, Washington, D.C.; for Amicus Curiae
America’s Health Insurance Plans.
Daryl Joseffer and Jennifer B. Dickey, United States
Chamber Litigation Center Inc., Washington, D.C.; Andrew
J. Pincus, Archis A. Parasharami, and Daniel E. Jones,
Mayer Brown LLP, Washington, D.C.; Avi M. Kupfer,
Mayer Brown LLP, Chicago, Illinois; for Amicus Curiae
The Chamber of Commerce of the United States of America.
Joanna S. McCallum, Manatt Phelps & Phillips LLP, Los
Angeles, California; Joseph E. Laska and Nathaniel A.
Cohen, Manatt Phelps & Phillips LLP, San Francisco,
California; for Amicus Curiae Association for Behavior
Health and Wellness.
Elena Goldstein, Acting Solicitor of Labor; G. William
Scott, Associate Solicitor for Plan Benefit Security; Jeffrey
Hahn, Counsel for Litigation, Melissa Moore and Stephen
Silverman, Senior Attorneys; United States Department of
Labor, Office of the Solicitor, Plan Benefits Security
 WIT V. UNITED BEHAVIORAL HEALTH 7

Division, Washington, D.C.; for Amicus Curiae Secretary of
Labor.
Alyssa C. George and Sejal Singh, Trial Attorneys; Jeffrey
Hahn, Counsel for Appellate and Special Litigation, Wayne
R. Berry, Acting Associate Solicitor for Plan Benefits
Security; Seema Nanda, Solicitor of Labor; United States
Department of Labor, Office of the Solicitor, Plan Benefits
Security Division, Washington, D.C.; for Amicus Curiae
Secretary of Labor.
Martine N. D’Agostino and Ari Dybnis, Deputy Attorneys
General; Karli Eisenberg, Supervising Deputy Attorney
General; Renu R. George, Senior Assistant Attorney
General; Rob Bonta, California Attorney General; Oakland,
California; for Amicus Curiae The State of California.
Julia Harvey, Special Assistant Attorney General; Sarah W.
Rice, and Michael Field, Assistant Attorneys General; Peter
F. Neronha, Rhode Island Attorney General; Rhode Island
Attorney General’s Office, Providence, Rhode Island; Maria
R. Lenz, Assistant Attorney General, Rhode Island Supreme
Court, Office of Disciplinary Counsel, Warwick, Rhode
Island; Thomas Ryan, Assistant Attorney General; Clare
Kindall, Solicitor General; William Tong, Connecticut
Attorney General; Connecticut Attorney General’s Office,
Hartford, Connecticut; Sarah A. Hunger, Attorney, Attorney
General’s Office, Chicago, Illinois; Kwame Raoul, Illinois
Attorney General; Illinois Attorney General’s Office,
Chicago, Illinois; Aaron M. Frey, Maine Attorney General,
Augusta, Maine; Ellen F. Rosenblum, Oregon Attorney
General, Salem, Oregon; Charity R. Clark, Vermont
Attorney General, Montpelier, Vermont; Robert W.
Ferguson, Washington Attorney General, Olympia,
Washington; Anthony G. Brown, Maryland Attorney
8 WIT V. UNITED BEHAVIORAL HEALTH

General, Baltimore, Maryland; Dana Nessel, Michigan
Attorney General, Lansing, Michigan; Aaron D. Ford,
Nevada Attorney General, Carson City, Nevada; Matthew
J. Platkin, New Jersey Attorney General, Trenton, New
Jersey; Letitia James, New York Attorney General, New
York, New York; for Amici Curiae Rhode Island, Colorado,
Connecticut, Delaware, Illinois, Maine, Maryland,
Michigan, Minnesota, Nevada, New Jersey, New York,
Oregon, Vermont, Washington, and the District of
Columbia.

ORDER

The opinion filed on January 26, 2023, is vacated, and
replaced with the concurrently filed opinion. The pending
petition for panel rehearing [128] is GRANTED. Because
we grant the petition for panel rehearing, the petition for
rehearing en banc is DENIED as moot. The amicus curiae
motions [133, 134, & 140], and motion for leave to file a
reply in support of the petition for rehearing [147] are also
DENIED as moot. Subsequent petitions for rehearing or
rehearing en banc, if any, are permissible.
 WIT V. UNITED BEHAVIORAL HEALTH 9

OPINION

ANELLO, District Judge:

United Behavioral Health (“UBH”) appeals from the
district court’s judgment finding it liable to classes of
Employee Retirement Income Security Act of 1974, 29
U.S.C. § 1001 et seq. (“ERISA”) plaintiffs under 29 U.S.C.
§§ 1132(a)(1)(B) and (a)(3), as well as several pre- and post-
trial orders, including class certification, summary
judgment, and a remedies order. UBH contends on appeal
that Plaintiffs lack Article III standing, and that the district
court erred at class certification and trial in several respects.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
reverse in part.
I
UBH is one of the nation’s largest managed healthcare
organizations. It administers insurance benefits for mental
health conditions and substance use disorders for various
commercial health benefit plans. In this role, UBH
processes coverage requests made by plan members to
determine whether the treatment sought is covered under the
respective plans. UBH retains discretion to make these
coverage determinations “for specific treatment for specific
members based on the coverage terms of the member’s
plan.”
Individually named plaintiffs David and Natasha Wit,
Brian Muir, Brandt Pfeifer, Lori Flanzraich, Cecilia
Holdnak, Gary Alexander, Corinna Klein, David Haffner,
Linda Tillitt, and Michael Driscoll (collectively,
“Plaintiffs”) are all beneficiaries of ERISA-governed health
benefit plans for which UBH was the claims administrator.
10 WIT V. UNITED BEHAVIORAL HEALTH

Plaintiffs all submitted coverage requests, which UBH
denied.
Plaintiffs initiated this action on behalf of three putative
classes, asserting, at issue here, two claims against UBH.
The first is for breach of fiduciary duty pursuant to 29 U.S.C.
§ 1132(a)(1)(B) and “to the extent the injunctive relief
Plaintiffs seek is unavailable under that section, they assert
the claim under 29 U.S.C. § 1132(a)(3)(A).” Second,
Plaintiffs brought an improper denial of benefits claim under
29 U.S.C. §§ 1132(a)(1)(B) and (a)(3)(B). Both of
Plaintiffs’ claims hinge on a theory that UBH improperly
developed and relied on internal guidelines that were
inconsistent with the terms of the class members’ plans and
with state-mandated criteria. 1
Among the individually named Plaintiffs, there are ten
different ERISA plans. Among the class members, there
may be as many as 3,000 different plans. The Parties
stipulated to a sample class of 106 members, from which
they submitted a sample of health insurance plans (the
“Plans”). Plaintiffs alleged that the Plans required, as a
condition of coverage, that treatment be consistent with
generally accepted standards of care (“GASC”) or were
governed by state laws specifying certain criteria for making
coverage or medical necessity determinations. Some of the
plans administered by UBH were fully insured plans where
UBH served a dual role as a plan administrator and insurer,
both authorized to determine the benefits owed and
responsible for paying such benefits.

1
Plaintiffs also alleged that UBH developed the Guidelines to benefit its
self-serving financial interests in breach of its fiduciary duties.
 WIT V. UNITED BEHAVIORAL HEALTH 11

The Plans provide that a precondition for coverage is that
treatment be consistent with GASC. The Plans contain
additional conditions and exclusions, and Plaintiffs did “not
dispute that a service that is consistent with [GASC] may,
nonetheless, be excluded from coverage under a particular
class member’s plan.” For example, some plans may
exclude “[s]ervices that extend beyond the period necessary
for evaluation, diagnosis, the application of evidence-based
treatments, or crisis intervention to be effective.” Some
plans also may require that the service be the “least costly
alternative.” The Plans grant UBH discretion to interpret
these various terms and determine whether a requested
service is covered.
UBH employed two different processes to determine
whether a requested service was covered. First, where the
requested service was subject to a Plan exclusion, UBH
issued an administrative denial. Administrative denials did
not involve clinical reviews and are not at issue in this
appeal. Second, for those claims not administratively
denied, UBH conducted a clinical review, by which UBH
Peer Reviewers made clinical coverage determinations. To
assist with these clinical coverage determinations, UBH
developed internal guidelines used by UBH’s clinicians.
These guidelines included the challenged Level of Care
Guidelines and Coverage Determination Guidelines
(“Guidelines”). The Level of Care Guidelines were used for
all Plans that limited coverage to medically necessary
services. The Coverage Determination Guidelines were
used for all plans not containing a medical necessity
requirement. The Guidelines applied across Plans and were
not customized based on specific plan terms. For this reason,
among others, Plaintiffs argue that the Guidelines
12 WIT V. UNITED BEHAVIORAL HEALTH

implemented only the plan exclusion for coverage
inconsistent with GASC, which appeared in all plans.
UBH issued new Level of Care Guidelines each year,
which contained several parts. Following an introduction,
the Level of Care Guidelines established “Common Criteria”
that applied to coverage at all levels of care. They also
included sections devoted to each specific level of care,
including residential treatment, intensive outpatient
treatment, and outpatient treatment. 2 Applicable to both the
Common Criteria and the level of care sections, the Level of
Care Guidelines provided specific requirements governing
patients’ admittance to, continuation of, and discharge from
care. For example, the 2014 Level of Care Guidelines
Common Criteria provided that admission to any level of
care is appropriate only where “[t]he member’s current
condition cannot be safely, efficiently, and effectively
assessed and/or treated in a less intensive setting due to acute
changes in the member’s signs and symptoms and/or
psychosocial and environmental factors.” Another criteria
for admission to any level of care was that the “[s]ervices are
within the scope of the provider’s professional training and
licensure.” Plaintiffs challenge the former as more
restrictive than GASC, but they do not challenge the latter.
The Coverage Determination Guidelines were structured
differently. Rather than focusing on level of care, most were
organized by diagnosis. For instance, one set of Coverage
Determination Guidelines addressed treatment of bulimia
nervosa, while another addressed trauma- and stressor-
related disorders. Each set of Coverage Determination
Guidelines provided detailed information about the

2
The Level of Care Guidelines included sections addressing several
other levels of care, but those are not at issue in this appeal.
 WIT V. UNITED BEHAVIORAL HEALTH 13

appropriate treatment for the specific diagnosis. Each set of
Coverage Determination Guidelines also referred to the
Level of Care Guidelines. Although the references to the
Level of Care Guidelines took a variety of forms and some
Coverage Determination Guidelines referred to Level of
Care Guidelines only “as support in a specific paragraph or
paragraphs,” the district court concluded that each set of
Coverage Determination Guidelines fully incorporated by
reference the Level of Care Guidelines. With the exception
of the Coverage Determination Guidelines for Custodial
Care, Plaintiffs challenge the Coverage Determination
Guidelines only to the extent that they incorporate the Level
of Care Guidelines.
Plaintiffs alleged that many aspects of the Level of Care
Guidelines were more restrictive than GASC and were also
more restrictive than state-mandated criteria for making
medical-necessity or coverage determinations. Plaintiffs
further alleged that UBH breached its fiduciary duties to act
solely in the interests of the participants and beneficiaries to
develop coverage criteria consistent with GASC. UBH also
allegedly breached its fiduciary duties by developing
guidelines inconsistent with criteria explicitly mandated by
state laws. Plaintiffs further contended that UBH breached
its duties by promulgating self-serving, cost-cutting
guidelines that are more restrictive than the Plans. As to
their denial of benefits claim, Plaintiffs argued that UBH
violated ERISA by improperly denying Plaintiffs benefits
based on its Guidelines, which Plaintiffs allege are more
restrictive than the Plans or criteria mandated by state laws.
Plaintiffs sought certification of three proposed classes
as to both claims: (1) the Wit Guideline Class; (2) the Wit
14 WIT V. UNITED BEHAVIORAL HEALTH

State Mandate Class; and (3) the Alexander Guideline Class.
The Wit Guideline Class was defined as:

Any member of a health benefit plan
governed by ERISA whose request for
coverage of residential treatment services for
a mental illness or substance use disorder was
denied by UBH, in whole or in part, on or
after May 22, 2011, based upon UBH’s Level
of Care Guidelines or UBH’s Coverage
Determination Guidelines.
The Wit Guideline Class excludes members
of the Wit State Mandate Class, as defined
below.

The Wit State Mandate Class was defined as:

Any member of a fully-insured health benefit
plan governed by both ERISA and the state
law of Connecticut, Illinois, Rhode Island or
Texas, whose request for coverage of
residential treatment services for a substance
use disorder was denied by UBH, in whole or
in part, [within the Class period], based upon
UBH’s Level of Care Guidelines or UBH’s
Coverage Determination Guidelines and not
upon the level-of-care criteria mandated by
the applicable state law. . . .

The Alexander Guideline Class was defined as:

Any member of a health benefit plan
governed by ERISA whose request for
coverage of outpatient or intensive outpatient
 WIT V. UNITED BEHAVIORAL HEALTH 15

services for a mental illness or substance use
disorder was denied by UBH, in whole or in
part, on or after May 22, 2011, based upon
UBH’s Level of Care Guidelines or UBH’s
Coverage Determination Guidelines.
The Alexander Guideline Class excludes any
member of a fully insured plan governed by
both ERISA and the state law of Connecticut,
Illinois, Rhode Island or Texas, whose
request for coverage of intensive outpatient
treatment or outpatient treatment related to a
substance use disorder.

The classes differ in that the Wit State Mandate Class
includes members whose denial of benefits was based on
UBH’s Guidelines and not on state-mandated level-of-care
criteria. The Guideline classes include members whose
denials were based on the Guidelines and not on the terms of
the Plans. The Wit Guideline Class included members who
requested coverage of residential treatment services,
whereas the Alexander Guideline Class included members
who requested coverage of outpatient or intensive outpatient
services.
For their breach of fiduciary duties claim, Plaintiffs
sought injunctive and declaratory relief. As to their denial
16 WIT V. UNITED BEHAVIORAL HEALTH

of benefits claim, Plaintiffs sought reprocessing of their
claims 3 and argued:

Individual circumstances are . . . irrelevant to
[this claim]. Plaintiffs are not asking this
Court to determine whether Class members
were owed benefits or whether UBH should
be ordered to cause its plans to pay such
benefits. Rather, Plaintiffs seek a
reprocessing remedy, which stems directly
from their allegation that UBH used an
arbitrary process, premised on fatally flawed
Guidelines, to deny their requests for
coverage. For that reason, Plaintiffs need not
prove at trial that UBH reached the wrong
outcome in every single one of its coverage
determinations.

UBH disagreed, arguing that individualized inquiries
were needed to adjudicate the class claims, and it submitted
an expert report containing examples of potential class
members whose claims were denied at the initially requested
level of care but who ultimately accepted alternate care, or
whose claim was denied both because the requested
treatment was inconsistent with the Guidelines and for other
unrelated reasons.
At a class certification hearing, the district court stated:
“The complaint asserts denial of benefit claims for a variety
of reasons other than the restrictive guidelines theory, and
the question is are those still in the case? It’s transparent to

3
Plaintiffs relatedly sought a declaration that UBH’s denial of benefits
was improper and an order for UBH to apply the new guidelines in
processing future claims.
 WIT V. UNITED BEHAVIORAL HEALTH 17

me, I guess, that you’re not seeking certification on those.”
Plaintiffs stipulated that “if the case is certified as a class
case” then “additional theories” requiring “individualized
inquiries as to why UBH’s denials of the named Plaintiffs’
claims for benefits were wrongful” would “not be part of this
case.” Plaintiffs also asserted at the class certification
hearing that their denial of benefits claim was “a process
claim,” because the claim is “about the fact that UBH used
criteria that were inconsistent with the terms of the
member’s plans.”
On September 19, 2016, the district court granted
Plaintiffs’ motion to certify these classes. 4 In its order, the
district court stated:

Of particular significance is the fact that
Plaintiffs do not ask the Court to make
determinations as to whether class members
were actually entitled to benefits (which
would require the Court to consider a
multitude of individualized circumstances
relating to the medical necessity for coverage
and the specific terms of the member’s plan).

In this same order, the district court addressed whether
the class would be ascertainable, and described a UBH
database containing denial letters, which could identify any

4
The district court later issued an order partially decertifying the class to
exclude class members who successfully appealed their coverage
denials, members who were initially improperly included because of a
“flaw in the method used to identify class members,” and to modify the
Illinois State Mandate Class period.
18 WIT V. UNITED BEHAVIORAL HEALTH

denial that “referenced,” the Guidelines. Later, when the
district court partially decertified the class, it explained:

First and foremost, the injury that is the basis
of Plaintiffs’ claims was the adoption and use
of flawed Guidelines in deciding whether
Plaintiffs were entitled to coverage. As the
Court explained on summary judgment, such
an injury is cognizable under ERISA and
consistent with existing case law, which does
not require that Plaintiffs demonstrate that
the flaws in UBH’s Guidelines were the but-
for cause of the denial of their benefits.

Beginning October 16, 2017, the district court held a ten-
day bench trial. The district court, in its post-trial findings
of fact and conclusions of law, relied upon Plaintiffs’
representations that their denial of benefits claim was a
“process claim” only, stating “Plaintiffs stipulated at the
class certification stage of the case that they do not ask the
Court to make determinations as to whether individual class
members were actually entitled to benefits . . . . Rather, they
assert only facial challenges to the Guidelines.”
The district court entered judgment in Plaintiffs’ favor,
concluding that UBH breached its fiduciary duties and
wrongfully denied benefits because the Guidelines
impermissibly deviated from GASC and state-mandated
criteria. The district court also found that financial
incentives infected UBH’s Guideline development process,
particularly where the Guidelines “were riddled with
requirements that provided for narrower coverage than is
consistent with” GASC. Based on these findings, the district
court concluded that UBH breached its fiduciary duty to
 WIT V. UNITED BEHAVIORAL HEALTH 19

comply with Plan terms and breached its duties of loyalty
and care “by adopting Guidelines that are unreasonable and
do not reflect” GASC. It also held that UBH improperly
denied Plaintiffs benefits by relying on its restrictive
Guidelines that were inconsistent with the Plan terms and
state law.
The parties had stipulated, and the district court found,
that the Plans gave UBH discretionary authority to create
tools, such as the Guidelines, to facilitate interpretation and
administration of the Plans. But the district court viewed
UBH’s interpretation with “significant skepticism” because
it found that UBH had a financial conflict of interest and a
structural conflict of interest as a dual administrator and
insurer for some plans. Ultimately, the district court held
that UBH’s interpretation embodied in the Guidelines was
unreasonable and an abuse of discretion.
In its extensive Findings of Fact and Conclusions of
Law, the district court excused any unnamed class members
for failing to exhaust their administrative remedies under the
Plans despite acknowledging evidence that “some class
members who did not exhaust available administrative
remedies were required under their Plans to exhaust those
remedies before they could bring a legal action against
UBH.” The district court cited to one of the sample plans,
which states: “You cannot bring any legal action against us
to recover reimbursement until you have completed all the
steps [described in the plan].” The district court further
found that exhaustion would have been futile.
The district court issued declaratory and injunctive relief,
directed the implementation of court-determined claims
processing guidelines, ordered “reprocessing” of all class
members’ claims in accordance with the new guidelines, and
20 WIT V. UNITED BEHAVIORAL HEALTH

appointed a special master to oversee compliance for ten
years.
II
ERISA is a federal statute designed to regulate
“employee benefit plan[s].” 29 U.S.C. § 1003(a). Congress
enacted ERISA “to promote the interests of employees and
their beneficiaries in employee benefit plans,” Shaw v. Delta
Air Lines, Inc., 463 U.S. 85, 90 (1983), “by setting out
substantive regulatory requirements for employee benefit
plans and to ‘provid[e] for appropriate remedies, sanctions,
and ready access to the Federal courts,’” Aetna Health Inc.
v. Davila, 542 U.S. 200, 208 (2004) (alteration in original)
(quoting 29 U.S.C. § 1001(b)). “The purpose of ERISA is
to provide a uniform regulatory regime over employee
benefit plans.” Id.
ERISA does not “require[] employers to establish
employee benefits plans.” Lockheed Corp. v. Spink, 517 U.S.
882, 887 (1996). “Nor does ERISA mandate what kind of
benefits employers must provide if they choose to have such
a plan.” Id. (first citing Shaw, 463 U.S. at 91; and then citing
Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 511
(1981)). Rather, ERISA “ensure[s] that employees will not
be left empty-handed once employers have guaranteed them
certain benefits.” Id. The Supreme Court has “recognized
that ERISA represents a ‘careful balancing between ensuring
fair and prompt enforcement of rights under a plan and the
encouragement of the creation of such plans.’” Conkright v.
Frommert, 559 U.S. 506, 517 (2010) (quoting Aetna Health,
542 U.S. at 215). “Congress sought ‘to create a system that
is [not] so complex that administrative costs, or litigation
expenses, unduly discourage employers from offering
[ERISA] plans in the first place.’” Id. (alterations in
 WIT V. UNITED BEHAVIORAL HEALTH 21

original) (quoting Varity Corp. v. Howe, 516 U.S. 489, 497
(1996)). “ERISA ‘induc[es] employers to offer benefits by
assuring a predictable set of liabilities, under uniform
standards of primary conduct and a uniform regime of
ultimate remedial orders and awards when a violation has
occurred.’” Id. (alteration in original) (quoting Rush
Prudential HMO, Inc. v. Moran, 536 U.S. 355, 379 (2002),
overruled in part on other grounds by Ky. Ass’n of Health
Plans v. Miller, 538 U.S. 329 (2003)).
Accordingly, 29 U.S.C. § 1132(a) “set[s] forth a
comprehensive civil enforcement scheme.” Aetna Health,
542 U.S. at 208 (2004) (quoting Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41, 54 (1987), overruled in part on other
grounds by Miller, 538 U.S. 329).
III
UBH argues that Plaintiffs lacked Article III standing to
bring their claims because: (1) Plaintiffs did not suffer
concrete injuries; and (2) Plaintiffs did not show proof of
benefits denied, and so they cannot show any damages
traceable to UBH’s Guidelines. We disagree. We review de
novo the district court’s determination that Plaintiffs have
Article III standing. See Spinedex Physical Therapy USA
Inc. v. United Healthcare of Ariz., Inc., 770 F.3d 1282, 1288
(9th Cir. 2014).
To establish standing under Article III, “a plaintiff must
show (i) that he suffered an injury in fact that is concrete,
particularized, and actual or imminent; (ii) that the injury
was likely caused by the defendant; and (iii) that the injury
would likely be redressed by judicial relief.” TransUnion
LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (citing Lujan
v. Defs. Of Wildlife, 504 U.S. 555, 560–61 (1992)). “If ‘the
plaintiff does not claim to have suffered an injury that the
22 WIT V. UNITED BEHAVIORAL HEALTH

defendant caused and the court can remedy, there is no case
or controversy for the federal court to resolve.’” Id. (quoting
Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329, 333
(7th Cir. 2019)).
To determine whether a statutory violation caused a
concrete injury, we ask: “(1) whether the statutory
provisions at issue were established to protect [the
plaintiff’s] concrete interests (as opposed to purely
procedural rights), and if so, (2) whether the specific
procedural violations alleged in this case actually harm, or
present a material risk of harm to, such interests.” Patel v.
Facebook, Inc., 932 F.3d 1264, 1270–71 (9th Cir. 2019)
(alteration in original) (quoting Robins v. Spokeo, Inc., 867
F.3d 1108, 1113 (9th Cir. 2017)).
A
We find Plaintiffs sufficiently alleged a concrete injury
as to their fiduciary duty claim. ERISA’s core function is to
“protect contractually defined benefits,” US Airways, Inc. v.
McCutchen, 569 U.S. 88, 100 (2013) (quoting Mass. Mut.
Life Ins. Co. v. Russell, 473 U.S. 134, 148 (1985)), and
UBH’s alleged fiduciary violation presents a material risk of
harm to Plaintiffs’ interest in their contractual benefits, see
Ziegler v. Conn. Gen. Life Ins. Co., 916 F.2d 548, 551 (9th
Cir. 1990) (“Congress intended to make fiduciaries culpable
for certain ERISA violations even in the absence of actual
injury to a plan or participant.”). Under the fiduciary duties
section of ERISA, a fiduciary has a duty to administer plans
“solely in the interest of the participants and beneficiaries . .
. with . . . care, skill, prudence, and diligence,” and “in
accordance with the documents and instruments governing
the plan.” 29 U.S.C. § 1104(a). Plaintiffs alleged that UBH
administered their Plans in UBH’s financial self-interest and
 WIT V. UNITED BEHAVIORAL HEALTH 23

in conflict with Plan terms. This presents a material risk of
harm to Plaintiffs’ ERISA-defined right to have their
contractual benefits interpreted and administered in their
best interest and in accordance with their Plan terms. Their
alleged harm further includes the risk that their claims will
be administered under a set of Guidelines that impermissibly
narrows the scope of their benefits and also includes the
present harm of not knowing the scope of the coverage their
Plans provide. The latter implicates Plaintiffs’ ability to
make informed decisions about the need to purchase
alternative coverage and the ability to know whether they are
paying for unnecessary coverage.
We also find Plaintiffs alleged a concrete injury as to the
denial of benefits claim. As explained, ERISA protects
contractually defined benefits, see McCutchen, 569 U.S. at
100. Plaintiffs alleged a harm—the arbitrary and capricious
adjudication of benefits claims—that presents a material risk
to their interest in fair adjudication of their entitlement to
their contractual benefits. Plaintiffs need not have
demonstrated that they were, or will be, entitled to benefits
to allege a concrete injury. See CIGNA Corp. v. Amara, 563
U.S. 421, 424–25 (2011); cf. Ne. Fla. Chapter of Associated
Gen. Contractors of Am. v. City of Jacksonville, 508 U.S.
656, 666 (1993) (“When the government erects a barrier that
makes it more difficult for” someone “to obtain a benefit” a
plaintiff challenging “the barrier need not allege that he
would have obtained the benefit but for the barrier in order
to establish standing”).
B
We also find that Plaintiffs alleged a particularized injury
as to both claims. “For an injury to be ‘particularized,’ it
‘must affect the plaintiff in a personal and individual way.’”
24 WIT V. UNITED BEHAVIORAL HEALTH

Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (citation
omitted), as revised (May 24, 2016). Plaintiffs’ alleged
injuries are particularized because the Guidelines are applied
to the contractual benefits afforded to each individual class
member. The fact that Plaintiffs did not ask the court to
determine whether they were individually entitled to benefits
does not change the fact that the Guidelines materially
affected each Plaintiff. Cf. Thole v. U.S. Bank N.A., 140 S.
Ct. 1615 (2020) (holding no injury where alleged ERISA
violations had no effect on plaintiffs’ defined benefit plan).
Finally, Plaintiffs’ alleged injuries are “fairly traceable”
to UBH’s conduct. An injury is “fairly traceable” where
there is a causal connection between the injury and the
defendant’s challenged conduct. Lujan, 504 U.S. at 560.
Plaintiffs’ alleged injuries are fairly traceable to UBH’s
conduct because their interest in the proper interpretation of
their contractual benefits, inability to know the scope of
coverage under their Plans, and denial of coverage requests,
are all connected to UBH’s alleged conduct of improperly
developing Guidelines in its own self-interest and using
those improper Guidelines in denying Plaintiffs’ coverage
requests.
IV
UBH also appeals from the district court’s class
certification order. The district court’s class certification
decision is reviewed for an abuse of discretion. Pulaski &
Middleman, LLC v. Google, Inc., 802 F.3d 979, 984 (9th Cir.
2015). A district court abuses its discretion when its ruling
is based “on an erroneous view of the law.” Id. (citation
omitted). We review de novo the district court’s
interpretation of ERISA. See Shaver v. Operating Eng’rs
Loc. 428 Pension Tr. Fund, 332 F.3d 1198, 1201 (9th Cir.
 WIT V. UNITED BEHAVIORAL HEALTH 25

2003). UBH argues that the district court erred in certifying
the three classes based on Plaintiffs’ “novel reprocessing
theory” because Rule 23 of the Rules of Civil Procedure and
the Rules Enabling Act, 28 U.S.C. § 2072(b), forbid using
the class action procedure to expand or modify substantive
rights. As to Plaintiffs’ denial of benefits claim, we agree. 5
“[T]he Rules Enabling Act forbids interpreting Rule 23
to ‘abridge, enlarge or modify any substantive right.’” Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 367 (2011)
(quoting 28 U.S.C. § 2072(b)). We must therefore begin
with the ERISA statute to determine Plaintiffs’ substantive
rights.
As discussed above, the purpose of ERISA is to “provide
a uniform regulatory regime over employee benefit plans.”
Aetna Health, 542 U.S. at 208. Accordingly, 29 U.S.C.
§ 1132(a) “set[s] forth a comprehensive civil enforcement
scheme” for accomplishing the overall purposes of ERISA.
Id. (quoting Dedeaux, 481 U.S. at 54). Two provisions are
particularly relevant: § 1132(a)(1)(B) and § 1132(a)(3).
Under § 1132(a)(1)(B), “[i]f a participant or beneficiary
believes that benefits promised to him under the terms of the
plan are not provided, he can bring suit seeking provision of
those benefits. A participant or beneficiary can also bring
suit generically to ‘enforce his rights’ under the plan, or to

5
UBH’s Rule 23 argument in its Opening Brief disputed class
certification only on the grounds that Plaintiffs facially challenged the
Guidelines and have asserted a “novel reprocessing theory” to advance
their denial of benefits claim on a class-wide basis. This argument does
not implicate a Rules Enabling Act issue as to the fiduciary duty claim.
Thus, we deem any challenge to certification of the breach of fiduciary
duty claim forfeited, and our analysis leaves class certification as to that
claim intact.
26 WIT V. UNITED BEHAVIORAL HEALTH

clarify any of his rights to future benefits.” Id. at 210
(quoting 29 U.S.C. § 1132(a)(1)(B)).
Plaintiffs argue that under ERISA, beneficiaries have a
right to a “full and fair review” under the correct standard,
Buffonge v. Prudential Ins. Co. Of Am., 426 F.3d 20, 30 (1st
Cir. 2005), and that where an administrator applies the
wrong standard, remand is the appropriate remedy to enforce
the right to full and fair review under the plan. While remand
may be an appropriate remedy in some cases where an
administrator has applied an incorrect standard, we conclude
that the district court erred in granting class certification here
based on its determination that the class members were
entitled to have their claims reprocessed regardless of the
individual circumstances at issue in their claims.
We have ordered remand for claim reprocessing where a
plaintiff has shown that his or her claim was denied based on
the wrong standard and that he or she might be entitled to
benefits under the proper standard. See, e.g., Saffle v. Sierra
Pac. Power Co. Bargaining Unit Long Term Disability
Income Plan, 85 F.3d 455, 458, 460–61 (9th Cir. 1996);
Patterson v. Hughes Aircraft Co., 11 F.3d 948, 949–51 (9th
Cir. 1993). We have never held that a plaintiff is entitled to
reprocessing without a showing that application of the wrong
standard could have prejudiced the claimant. In fact, we
have declined to remand for reevaluation where it would be
a “useless formality” because the administrator’s alleged
error did not prejudice the claimant or it was clear that the
claimant was ineligible for benefits. See Ellenburg v.
Brockway, Inc., 763 F.2d 1091, 1095–96 (9th Cir. 1985)
(concluding a remand was an unnecessary and would be a
“useless formality” where plaintiff was ineligible for
benefits), abrogated on other grounds by Watkins v.
Westinghouse Hanford Co., 12 F.3d 1517, 1527 (9th Cir.
 WIT V. UNITED BEHAVIORAL HEALTH 27

1993); see also Hancock v. Montgomery Ward Long Term
Disability Tr., 787 F.2d 1302, 1308 (9th Cir. 1986)
(declining to remand where plaintiff did not establish she
was prejudiced by alleged procedural defect). Other circuits
have similarly declined to remand for claim reevaluation or
reprocessing where it would be futile. See, e.g., Judge v.
Metro. Life Ins. Co., 710 F.3d 651, 659–60 (6th Cir. 2013)
(concluding that “even if [defendant] were found to have
applied an incorrect definition of [the relevant plan term], a
remand to [defendant] for reconsideration under the correct
definition would be unavailing” where the defendant “would
undoubtedly reach the same conclusion”); Giordano v.
Thomson, 564 F.3d 163, 168 n.3 (2d Cir. 2009) (declining to
reach claim that plaintiff was denied a “full and fair review”
because “[r]emand would be futile”).
Plaintiffs further argue that class certification was proper
because the Guidelines “were ‘riddled’ with errors, [and] the
District Court found that every Guidelines-based denial
necessarily implicated one or more of the many defects the
District Court found.” Plaintiffs are correct that the district
court reasoned that because the Guidelines were
“significantly and pervasively more restrictive than” GASC
in eight specific ways, “every adverse benefit determination
made by UBH based in whole or in part on any of the
Guidelines . . . was wrongful and made in violation of plan
terms and ERISA.” But this conclusion is not supported by
the record.
Plaintiffs defined their proposed classes such that every
class member’s claim was denied, at least in part, based on
UBH’s application of the Guidelines. The district court
found that the Level of Care Guidelines represented UBH’s
interpretation of GASC. It then made detailed findings
illustrating that many provisions of the Level of Care
28 WIT V. UNITED BEHAVIORAL HEALTH

Guidelines were more restrictive than GASC. These factual
findings are not challenged on appeal. But there are also
many provisions of the Level of Care Guidelines that
Plaintiffs did not challenge and that the district court did not
find to be overly restrictive. Plaintiffs do not show that
claimants who were denied coverage solely based on
unchallenged provisions of these Guidelines were denied a
full and fair review, yet those claimants are included in the
certified classes.
The flaw in class certification is even more apparent with
regard to the Coverage Determination Guidelines. The
district court found that the Coverage Determination
Guidelines incorporated the Level of Care Guidelines, but
the incorporation of flawed Level of Care Guidelines does
not demonstrate that class members whose claims were
denied under the Coverage Determination Guidelines were
necessarily denied a full and fair review. The Coverage
Determination Guidelines included many unchallenged
provisions, and some Coverage Determination Guidelines
incorporated the Level of Care Guidelines only “as support
in a specific paragraph or paragraphs.” There is no
indication that a claimant whose claim was denied under one
of the many unchallenged provisions in the Coverage
Determination Guidelines failed to receive a full and fair
review of his or her claim. Nonetheless, such claimants were
included in the classes.
Also fatal to Plaintiffs’ argument is that the classes were
defined as members whose claims were denied in part based
on the Guidelines. And the district court determined such
classes were ascertainable based on a UBH database that
could identify denials that merely referenced the Guidelines.
UBH pointed to at least some evidence that some class
members’ claims may have been denied for reasons wholly
 WIT V. UNITED BEHAVIORAL HEALTH 29

independent of the Guidelines even though the Guidelines
were referenced in their denial letters. For such class
members, remand for reevaluation may be a “useless
formality,” Ellenburg, 763 F.2d at 1096, if UBH’s alleged
error in utilizing the Guidelines did not prejudice them.
In sum, on this record Plaintiffs have fallen short of
demonstrating that all class members were denied a full and
fair review of their claims or that such a common showing is
possible. An individual plaintiff who demonstrated an error
in the Guidelines would not be eligible for reprocessing
without at least some showing that UBH employed an errant
portion of the Guidelines that related to his or her claim.
Because the classes were not limited to those claimants
whose claims were denied based only on the challenged
provisions of the Guidelines, Rule 23 was applied in a way
that enlarged or modified Plaintiffs’ substantive rights in
violation of the Rules Enabling Act. See Dukes, 564 U.S. at
367.
The district court also abused its discretion by
concluding that the reprocessing remedy could arise under
§ 1132(a)(3). Section 1132(a)(3) is a “catchall” provision
that allows appropriate equitable relief for injuries that
§ 1132 does not otherwise remedy. Varity, 516 U.S. at 511–
12, 515; see also Moyle v. Liberty Mut. Ret. Benefit Plan,
823 F.3d 948, 959 (9th Cir. 2016), as amended on denial of
reh’g and reh’g en banc (Aug. 18, 2016). Where the alleged
injury is improper denial of benefits, “a claimant may not
bring a claim for denial of benefits under § 1132(a)(3) when
a claim under § 1132(a)(1)(B) will afford adequate relief.”
Castillo v. Metro. Life Ins. Co., 970 F.3d 1224, 1229 (9th
Cir. 2020). Here, the type of relief that Plaintiffs seek is not
available under § 1132(a)(3) where they declined to make
the showing necessary to seek relief under § 1132(a)(1)(B).
30 WIT V. UNITED BEHAVIORAL HEALTH

Further, “[a]n individual bringing a claim under
§ 1132(a)(3) may seek ‘appropriate equitable relief,’ which
refers to ‘those categories of relief that, traditionally
speaking (i.e., prior to the merger of law and equity) were
typically available in equity.’” Castillo, 970 F.3d at 1229
(quoting CIGNA Corp. v. Amara, 563 U.S. 421, 439 (2011)).
Plaintiffs and the district court did not explain or refer to
precedent showing how reprocessing constitutes relief that
was typically available in equity for infirm Guidelines
unrelated to Plaintiffs’ claim for benefits. Consequently, the
district court erred in concluding that reprocessing was an
available remedy under 29 U.S.C. § 1132(a)(3).
The district court abused its discretion in certifying
Plaintiffs’ denial of benefits claims as class actions.
Therefore, we reverse this part of the district court’s class
certification order.
V
Turning to the merits of Plaintiffs’ claims, we begin by
noting that the same errors present in the district court’s
denial of benefits class certification order also infected its
merits and remedy determinations. Rather than determining
whether UBH denied Plaintiffs’ claims under a flawed
provision of the Guidelines, the district court determined that
remand was appropriate anytime UBH referenced any
portion of the Guidelines in denying the claims.
UBH further argues that the district court erred by
concluding that the Guidelines improperly deviated from
GASC, and by failing to apply an appropriate level of
deference to UBH’s interpretation of the Plans. As an initial
matter, UBH did not appeal the portions of the district
court’s judgment finding the Guidelines were impermissibly
 WIT V. UNITED BEHAVIORAL HEALTH 31

inconsistent with state-mandated criteria. This portion of the
district court’s decision therefore remains intact.
As discussed above, ERISA does not “mandate what
kind of benefits employers must provide.” Black & Decker
Disability Plan v. Nord, 538 U.S. 822, 833 (2003) (quoting
Lockheed, 517 U.S. at 887). ERISA “focus[es] on the
written terms of the plan” which “in short, [are] at the center
of ERISA.” Heimeshoff v. Hartford Life & Accident Ins.
Co., 571 U.S. 99, 108 (2013). The question then is not
whether ERISA mandates consistency with GASC—it does
not—but whether UBH properly administered the Plans
pursuant to the Plan terms. See id.
“Where the benefit plan gives the administrator or
fiduciary discretionary authority to determine eligibility for
benefits or to construe the terms of the plan, we ordinarily
review the plan administrator’s decisions for an abuse of
discretion.” Schikore v. BankAmerica Suppl. Ret. Plan, 269
F.3d 956, 960 (9th Cir. 2001); see also Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). The
administrator’s interpretation is an abuse of discretion if the
interpretation is unreasonable. Moyle, 823 F.3d at 958.
Where the administrator or fiduciary has a conflict of
interest, review of its interpretation will be “informed by the
nature, extent, and effect on the decision-making process” of
such conflict. Abatie v. Alta Health & Life Ins. Co., 458 F.3d
955, 967 (9th Cir. 2006). “We review de novo a district
court’s choice and application of the standard of review to
decisions by fiduciaries in ERISA cases.” Williby v. Aetna
Life Ins. Co., 867 F.3d 1129, 1133 (9th Cir. 2017) (quoting
Estate of Barton v. ADT Sec. Servs. Pension Plan, 820 F.3d
1060, 1065 (9th Cir. 2016)). We review findings of fact for
clear error. Abatie, 458 F.3d at 962.
32 WIT V. UNITED BEHAVIORAL HEALTH

It is undisputed that the Plans in this case confer UBH
with discretionary authority to interpret the Plan terms. The
parties stipulated, and the district court found as a matter of
fact, that this includes the discretion to create interpretive
tools, such as the Guidelines. This finding was not clearly
erroneous. Accordingly, UBH’s interpretation of the Plans
via its Guidelines is reviewed for an abuse of discretion.
Schikore, 269 F.3d at 960. And the district court correctly
identified this standard of review.
But the district court also found that UBH had a
significant conflict of interest and therefore gave little
weight to UBH’s interpretation of the Plans. Where an
administrator has a dual role as plan administrator and plan
insurer, there is a structural conflict of interest. See Stephan
v. Unum Life Ins. Co. of Am., 697 F.3d 917, 929 (9th Cir.
2012). UBH served such a dual role as Plan administrator
and insurer (authorized to determine the benefits owed and
responsible for paying such benefits) for at least some of the
Plans. The district court found, in addition to this structural
conflict of interest, that UBH also had a financial conflict
because it was incentivized to keep benefit expenses down.
Again, the district court’s factual findings are not clearly
erroneous.
However, the district court’s findings did not excuse it
from applying the abuse of discretion standard. “Abuse of
discretion review applies to a discretion-granting plan even
if the administrator has a conflict of interest.” Abatie., 458
F.3d at 965 (emphasis added). The conflict is weighed as a
factor in determining whether the administrator abused its
discretion. Stephan, 697 F.3d at 929; see also Metro. Life
Ins. Co. v. Glenn, 554 U.S. 105, 115–17 (2008). The district
court purported to apply an abuse of discretion standard
tempered by high skepticism of UBH’s interpretation given
 WIT V. UNITED BEHAVIORAL HEALTH 33

UBH’s conflict of interest. UBH argues that even under a
tempered abuse of discretion standard, the district court
improperly substituted its own interpretation of the Plans’
terms by construing them to require coverage for all care
consistent with GASC. Plaintiffs respond that the district
court made no such mistake. Instead, they argue, the district
court understood the Guidelines were specifically developed
and employed to implement only the Plans’ requirement that
all care must be consistent with GASC in order to be
covered.
To the extent the district court concluded that the
challenged portions of the Guidelines represented UBH’s
implementation of the GASC requirement, we find no clear
error. But to the extent the district court interpreted the Plans
to require coverage for all care consistent with GASC, the
court erred. Even assuming the conflicts of interest found
by the district court warrant heavy skepticism against UBH’s
interpretation, UBH’s interpretation that the Plans do not
require coverage for all care consistent with GASC does not
conflict with the plain language of the Plans. To the
contrary, it gives effect to all the Plan provisions because the
Plans exclude coverage for treatment inconsistent with
GASC or otherwise condition treatment on consistency with
GASC. 6 In short, while the Plans mandated that a treatment
be consistent with GASC, they did not compel UBH to cover
all treatment that was consistent with GASC.

6
UBH also argues that it did not abuse its discretion because substantial
evidence supports the challenged portions of UBH’s Guidelines. We
hold that it was not error for the district court to rule that UBH abused
its discretion because the challenged portions of the Guidelines did not
accurately reflect GASC.
34 WIT V. UNITED BEHAVIORAL HEALTH

The district court’s statements on this issue are
conflicting. In several places throughout its orders, the
district court made clear its understanding that consistency
with GASC was just one requirement for coverage, and that
some plans excluded coverage for care that was consistent
with GASC. But there are other places in the record where
the district court stated the opposite. For instance, in its
partial decertification order, the court described class
members as those “covered by insurance plans that require
coverage consistent with generally accepted standards of
care but were denied coverage by UBH under [the]
Guidelines.” And the district court’s final judgment directed
that on remand, UBH must “re-evaluate only whether the
proposed treatment at the requested level of care was
consistent with generally accepted standards of care,” even
where the denial letter provided independent reasons for the
denial of coverage. If the treatment was consistent with
GASC, the court ordered UBH to pay the claims within 30
days.
We reverse the district court’s judgment that UBH
wrongfully denied benefits to the named Plaintiffs to the
extent the district court concluded the Plans require coverage
for all care consistent with GASC. 7

7
The district court’s judgment on Plaintiffs’ breach of fiduciary duty
claim also relied heavily on its conclusion that the Guidelines
impermissibly deviated from GASC. But this was not the only finding
relevant to the district court’s judgment on the breach of fiduciary duties
claim. The district court also found, among other things, that financial
incentives infected UBH’s Guideline development process and that UBH
developed the Guidelines with a view toward its own interests. Our
decision does not disturb these findings to the extent they were not
intertwined with an incorrect interpretation of the Plans.
 WIT V. UNITED BEHAVIORAL HEALTH 35

VI
Finally, UBH contends that the district court erred when
it excused unnamed class members from demonstrating
compliance with the Plans’ administrative exhaustion
requirement. We remand for the district court to determine
in the first instance the threshold issue of whether the
exhaustion requirement applies to the fiduciary claim and, if
so, whether that requirement was satisfied by the unnamed
class members or should otherwise be excused in light of our
decision.
Because we conclude that the district court erred in
certifying Plaintiffs’ denial of benefits claim, the only
remaining class claim is for breach of fiduciary duty.
Plaintiffs argue that exhaustion is not required for this
statutory claim. We have held that exhaustion is not required
for statutory breach of fiduciary duty claims. See Spinedex,
770 F.3d at 1294 (citing Horan v. Kaiser Steel Ret. Plan, 947
F.2d 1412, 1416 n. 1 (9th Cir.1991), overruled on other
grounds as recognized by Pac. Shores Hosp. v. United
Behav. Health, 764 F.3d 1030, 1041 (9th Cir. 2014)); see
also Guenther v. Lockheed Martin Corp., 972 F.3d 1043,
1052 (9th Cir. 2020). But exhaustion is required if a
plaintiff’s statutory claim is a disguised claim for benefits.
See Spinedex, 770 F.3d at 1294; see also Diaz v. United Agr.
Emp. Welfare Ben. Plan & Tr., 50 F.3d 1478, 1484 (9th Cir.
1995). UBH argued below and argues on appeal that
Plaintiffs’ breach of fiduciary duty claim is such a “disguised
benefit claim.” The district court did not decide this issue,
and instead assumed without deciding that the exhaustion
requirement applies to Plaintiffs’ breach of fiduciary duty
claim. Based on that assumption, the district court held that
the class members were excused from exhausting their
claims because the named Plaintiffs exhausted their
36 WIT V. UNITED BEHAVIORAL HEALTH

remedies, which put UBH on notice of the class members’
facial challenges to the Guidelines, “thus fulfilling the
purposes of UBH’s internal grievance procedure.” The
district court further held that “in any event, exhaustion is
not required because it would have been futile.”
We decline to reach the merits of whether the district
court erred in holding that the class members were excused
from exhausting their claims. Instead, we remand for the
district court to determine the threshold question of whether
Plaintiffs’ breach of fiduciary duty claim is a “disguised
claim for benefits,” subject to the exhaustion requirement.
See Spinedex, 770 F.3d at 1294. If the district court
determines that the exhaustion requirement does apply, it
must then determine if that requirement was satisfied or
otherwise excused in light of our resolution of the issues
presented in this appeal.
VII
In sum, Plaintiffs have Article III standing to bring their
breach of fiduciary duty and improper denial of benefits
claims pursuant to 29 U.S.C. §§ 112(a)(1)(B) and (a)(3).
And the district court did not err in certifying three classes
to pursue the fiduciary duty claim. However, by certifying
the denial of benefits classes without limiting the classes to
those with claims that UBH denied under a specific
Guidelines provision(s) challenged in this litigation that
applied to the claimant’s own request for benefits, the
certification order improperly enlarged or modified
Plaintiffs’ substantive rights in violation of the Rules
Enabling Act. Accordingly, we reverse the district court’s
certification of the denial of benefits classes.
On the merits, the district court erred to the extent it
determined that the Plans require the Guidelines to be
 WIT V. UNITED BEHAVIORAL HEALTH 37

coextensive with GASC. Therefore, the judgment on
Plaintiffs’ denial of benefits claim is reversed, and to the
extent the judgment on Plaintiffs’ breach of fiduciary duty
claim is based on the district court’s erroneous interpretation
of the Plans, it is also reversed. And we remand for the
district court to answer the threshold question of whether
Plaintiffs’ fiduciary duty claim is subject to the exhaustion
requirement.
AFFIRMED in part, REVERSED in part, and
REMANDED FOR FURTHER PROCEEDINGS. Each
party to bear its own costs.