FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CURTIS F. LEE, No. 14-15848
Plaintiff-Appellant,
D.C. No.
v. 2:12-cv-00042-ROS
ING GROEP, N.V., a Dutch
entity; RELIASTAR LIFE
INSURANCE COMPANY, a
Minnesota corporation; ING
EMPLOYEE BENEFITS DISABILITY
MANAGEMENT SERVICES, a
Minnesota corporation; ING
NORTH AMERICA INSURANCE
CORPORATION, a Delaware
corporation; ING INVESTMENT
MANAGEMENT, LLC, a Delaware
limited liability company;
KIMBERLY SHATTUCK; GENERAL
RE CORPORATION, a Delaware
corporation,
Defendants-Appellees.
2 LEE V. ING GROEP
CURTIS F. LEE, No. 14-15936
Plaintiff-Appellee,
D.C. No.
v. 2:12-cv-00042-ROS
ING NORTH AMERICA
INSURANCE CORPORATION, a OPINION
Delaware corporation,
Defendant-Appellant,
and
GENERAL RE CORPORATION, a
Delaware corporation; ING
GROEP, N.V., a Dutch entity;
RELIASTAR LIFE INSURANCE
COMPANY, a Minnesota
corporation; ING EMPLOYEE
BENEFITS DISABILITY
MANAGEMENT SERVICES, a
Minnesota corporation; ING
INVESTMENT MANAGEMENT,
LLC, a Delaware limited liability
company; KIMBERLY SHATTUCK,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Argued and Submitted May 9, 2016
San Francisco, California
LEE V. ING GROEP 3
Filed July 25, 2016
Before: Jerome Farris, Diarmuid F. O’Scannlain,
and Morgan Christen, Circuit Judges.
Opinion by Judge Farris
SUMMARY*
Employee Retirement Income Security Act
The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of the defendants in an
action under the Employee Retirement Income Security Act,
vacated an award of statutory penalties in favor of the
plaintiff, and remanded.
Affirming in part, the panel held that the district court
properly imposed a penalty under 29 US.C. § 1132(c)(1) on
the ERISA plan administrator for failing to produce the Plan
Document within 30 days of the plaintiff’s request.
The panel reversed the district court’s decision to impose
a penalty based on the plan administrator’s failure to timely
produce emails. Following other circuits, the panel held that
29 C.F.R. § 2560.503-1(h)(2)(iii) imposes requirements on
benefits plans, not plan administrators. Accordingly, a failure
to comply with this regulation cannot give rise to a penalty
under § 1132(c)(1), which applies only to documents that
*
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 LEE V. ING GROEP
plan administrators are required to produce. The panel
concluded that it was not bound by dicta in Sgro v. Danone
Waters of N. Am., Inc., 532 F.3d 940 (9th Cir. 2008). The
panel remanded for the district court to assess a penalty based
solely on the failure to timely produce the Plan Document.
COUNSEL
Thomas A. Connelly (argued) and Leo R. Beus, Beus Gilbert
PLLC, Phoenix, Arizona, for Plaintiff-Appellant/Cross-
Appellee.
Gregory A. Bromen (argued) and William D. Hittler, Nilan
Johnson Lewis PA, Minneapolis, Minnesota; Ann-Martha
Andrews and Lawrence A. Kasten, Lewis & Roca LLP,
Phoenix, Arizona; for Defendant-Appellees ReliaStar Life
Insurance Company, ING Investment Management, LLC,
and Kimberley Shattuck, and Defendant-Appellee/Cross-
Appellant ING North America Insurance Corporation.
Larry P. Schiffer (argued), Squire Patton Boggs (US) LLP,
New York, New York; Aaron A. Boschee, Squire Patton
Boggs (US) LLP, Denver, Colorado; for Defendant-Appellee
General Re Life Corporation.
LEE V. ING GROEP 5
OPINION
FARRIS, Senior Circuit Judge:
Curtis Lee is a former employee of ING Investment
Management, LLC. Through his employment, Lee
participated in a long term disability plan that is governed by
the Employee Retirement Income Security Act of 1974. See
29 U.S.C. § 1001 et seq. ING North America Insurance
Corporation was the plan administrator for this long term
disability plan. Lee applied for long term disability benefits
under the plan, which he received for a while, but then his
benefits were terminated. Lee filed a lawsuit against ING
Investment Management, ING North America, and others,
seeking inter alia, statutory penalties against ING North
America for failing to timely produce documents he had
requested. See 29 U.S.C. § 1132(c)(1). The district court
granted summary judgment to Lee on this claim and imposed
a penalty of $27,475. Lee appealed other aspects of the
district court’s decision, and ING North America cross-
appealed on this issue.1 We have jurisdiction under 28 U.S.C.
§ 1291. We affirm in part, reverse in part, vacate the penalty
award, and remand.
I.
On January 20, 2010, ReliaStar Life Insurance Company,
the claims administrator for Lee’s long term disability plan,
indicated that ReliaStar had insufficient evidence of Lee’s
continuing disability to approve further disability benefits. In
1
We address the other issues in this case in a memorandum disposition
filed concurrently with this opinion.
6 LEE V. ING GROEP
response, on February 5, 2010, Lee’s attorney wrote two
letters requesting documents.
The first letter was sent to Yoon Kim, counsel for ING
North America. This letter stated that Lee was entitled to a
broad range of documents and requested “copies of all
relevant communications . . . concerning Curtis Lee and his
claims for disability benefits” and specifically referenced
email communications. Kim interpreted this letter as a
request for “all documents relevant to Curtis’ claim for
benefits.”
The second letter was sent to James Kochinski, counsel
for ReliaStar, the claims administrator. This letter explicitly
requested all documents relevant to Lee’s claim. Kochinski
informed Kim about this letter.
On November 9, 2011, ING North America produced the
requested emails. On March 11, 2013, ING North America
produced a copy of the Plan Document.
II.
We review a district court’s grant of summary judgment
de novo, to determine whether, viewing the evidence in the
light most favorable to the non-moving party, any genuine
issue of material fact exists, and whether the district court
correctly applied the relevant law. Ashton v. Cory, 780 F.2d
816, 818 (9th Cir. 1986).
III.
Under 29 U.S.C. § 1132(c)(1), a plan administrator who
“fails or refuses to comply with a request for any information
LEE V. ING GROEP 7
which such administrator is required by this subchapter to
furnish . . . within 30 days after such request may in the
court’s discretion be personally liable to such participant or
beneficiary in the amount of up to $100 a day from the date
of such failure or refusal.” The district court found that ING
North America was liable under this statute for failing to
timely produce both the Plan Document and the emails.
ING North America does not dispute that this statute
authorizes penalties for failing to produce the Plan Document.
However, ING North America argues that Lee never actually
requested the Plan Document in his February 5, 2010 letter to
Kim. Instead, the letter only asked for copies of email
communications, and ING North America argues that failing
to produce emails cannot give rise to penalties under
29 U.S.C. § 1132(c)(1).
A. Plan Document
The district court correctly found that no genuine issue of
material fact exists as to whether Lee requested the Plan
Document from ING North America. Lee sent a document
request to ING North America’s counsel on February 5, 2010.
Regardless of the exact wording of this letter, ING North
America’s counsel interpreted it as a request for all
documents relevant to Lee’s claim. In addition, ING North
America was aware of the letter sent to ReliaStar that
explicitly requested all relevant documents.
ING North America did not dispute that the Plan
Document was a relevant document, or that it did not produce
the Plan Document within 30 days of February 5, 2010. No
genuine issue of material fact remained. We therefore affirm
8 LEE V. ING GROEP
the district court’s decision to impose a penalty on ING North
America for its failure to timely produce the Plan Document.
B. Emails
Lee argued to the district court that a statutory penalty for
failing to timely produce the requested emails was
appropriate because 29 C.F.R. § 2560.503-1(h)(2)(iii)
requires employee benefits plans to “[p]rovide that a claimant
shall be provided, upon request and free of charge, reasonable
access to, and copies of, all documents, records, and other
information relevant to the claimant’s claim for benefits.”
Lee argued that the emails were relevant to his claim for
benefits and so the failure to timely produce them warranted
a penalty under 29 U.S.C. § 1132(c)(1).
ING North America admitted that Lee requested the
emails, and ING North America did not produce them within
30 days. However, ING North America argued that failure to
produce documents required to be produced under 29 C.F.R.
§ 2560.503-1(h)(2)(iii) cannot give rise to a penalty under
29 U.S.C. § 1132(c)(1) because 29 C.F.R. § 2560.503-1(h)
imposes requirements on benefits plans not on plan
administrators and 29 U.S.C. § 1132(c)(1) only applies to
documents that plan administrators are required to produce.
The First, Second, Third, Sixth, Seventh, Eighth, and
Tenth Circuits, as well as several district courts in the Ninth
Circuit, have all agreed with ING North America’s position,
and found that a failure to follow claims procedures imposed
on benefits plans, as outlined in 29 U.S.C. § 1133 and
29 C.F.R. § 2560.503-1, cannot give rise to a penalty under
29 U.S.C. § 1132(c)(1). See Halo v. Yale Health Plan, Dir.
of Benefits & Records Yale Univ., 819 F.3d 42, 58, 60–61 (2d.
LEE V. ING GROEP 9
Cir. 2016); Medina v. Metro. Life Ins. Co., 588 F.3d 41, 48
(1st Cir. 2009); Brown v. J.B. Hunt Transport Servs., Inc.,
586 F.3d 1079, 1089 (8th Cir. 2009); Wilczynski v.
Lumbermens Mut. Cas. Co., 93 F.3d 397, 405–07 (7th Cir.
1996); VanderKlok v. Provident Life and Accident Ins. Co.,
956 F.2d 610, 618 (6th Cir. 1992); Walter v. Int’l Ass’n of
Machinists Pension Fund, 949 F.2d 310, 315–16 (10th Cir.
1991); Groves v. Modified Ret. Plan for Hourly Paid Emps.
of the Johns Manville Corp. and Subsidiaries, 803 F.2d 109,
116 (3d Cir. 1986); Care First Surgical Ctr. v. ILWU-PMA
Welfare Plan, No. CV14-01480 MMM (AGRx), 2014 WL
6603761, at *20–23 (C.D. Cal. July 28, 2014); Streit v.
Matrix Absence Mgmt., Inc., No. 3:12-CV-01797-AC, 2014
WL 667535, at *3–7 (D. Or. Feb 18, 2014); Bielenberg v.
ODS Health Plan, Inc., 744 F. Supp. 2d 1130, 1143–44 (D.
Or. 2010).
The district court agreed with our sister circuits that ING
North America’s reading of the penalty statute was the better
reading, but found that it was bound by this Court’s precedent
in Sgro v. Danone Waters of North America, Inc., 532 F.3d
940 (9th Cir. 2008), to side with Lee.
In Sgro, this Court was confronted with a claim for
statutory penalties based on a failure to produce notes kept by
claims personnel. See id. at 942. The plaintiff had alleged
that a penalty under 29 U.S.C. § 1132(c)(1) was appropriate
because the notes were relevant to his claim for benefits, and
so had to be produced under 29 C.F.R. § 2560.503-
1(h)(2)(iii). See id. at 945. The district court dismissed this
claim without prejudice. Id. at 942.
This Court affirmed that decision, based on the plaintiff’s
failure to sufficiently plead that he had requested the notes
10 LEE V. ING GROEP
from the plan administrator, as opposed to the claims
administrator. See id. at 945. In so doing, we appeared to
assume that, if properly plead, a penalty could be imposed
under 29 U.S.C. § 1132(c)(1) for failing to produce
documents required to be produced under 29 C.F.R.
§ 2560.503-1(h)(2)(iii). See id. However, we did not
explicitly so hold, and we did not address the distinction
between requirements imposed on plans and requirements
imposed on plan administrators. See id. Nor did we cite any
of the holdings of our sister circuits on the issue. See id.
The language in Sgro is non-binding dicta. We now join
our sister circuits and hold that a failure to follow claims
procedures imposed on benefits plans, such as outlined in
29 C.F.R. § 2560.503-1(h)(2)(iii) does not give rise to
penalties under 29 U.S.C. § 1132(c)(1). “Plans” and “plan
administrators” are separate entities with separate definitions
under ERISA. See 29 U.S.C. § 1002(1), (2)(A), (3), (16)(A).
Penalties under 29 U.S.C. § 1132(c)(1) can only be assessed
against “plan administrators” for failing to produce
documents that they are required to produce as plan
administrators. 29 C.F.R. § 2560.503-1(h)(2)(iii) does not
impose any requirements on plan administrators, and so
cannot form the basis for a penalty under 29 U.S.C.
§ 1132(c)(1). We therefore reverse the district court’s
decision to impose a penalty based on ING North America’s
failure to timely produce the emails.
IV.
ING North America is not liable for statutory penalties
based on its failure to produce the requested emails. It is,
however, liable for its failure to produce the Plan Document.
The district court stated that its penalty of $25 per day for
LEE V. ING GROEP 11
both failures would be the same even if it was only
considering the failure to produce the Plan Document. But
this statement is in tension with the district court’s finding
that, while the failure to produce the Plan Document was
inadvertent, the failure to produce the emails was intentional
and “[t]he fact that ING North America knowingly ignored
the regulation counsels in favor of a larger penalty.” We
therefore vacate the penalty award and remand to the district
court to assess a penalty based solely on the failure to timely
produce the Plan Document.
AFFIRMED in part; REVERSED in part; VACATED;
and REMANDED.
Each party shall bear their own costs on this appeal.