Alves v. Harvard Pilgrim Health Care, Inc.

          United States Court of Appeals
                        For the First Circuit

No. 02-1817

           JAMES ALVES and HILLEL STAVIS, INDIVIDUALLY
     AND ON BEHALF OF A CLASS OF PERSONS SIMILARLY SITUATED,

                       Plaintiffs, Appellants,

                                  v.

       HARVARD PILGRIM HEALTH CARE, INC., HARVARD PILGRIM
 HEALTH CARE OF NEW ENGLAND, INC., A MASSACHUSETTS CORPORATION,
        HARVARD PILGRIM HEALTH CARE OF NEW ENGLAND, INC.,
      A RHODE ISLAND CORPORATION, HARVARD VANGUARD MEDICAL
         ASSOCIATES, INC., and PILGRIM HEALTH CARE, INC.,

                       Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Patti B. Saris, U.S. District Judge]


                               Before

                         Boudin, Chief Judge,

                Torruella and Lipez, Circuit Judges.


     Edward D. Rapacki with whom Ellis & Rapacki LLP and Stuart T.
Rossman, National Consumer Law Center, were on brief for
appellants.
     Michael Arthur Walsh with whom Jennifer J. Aresco, Sandy Se
Young Shen and Choate, Hall & Stewart were on brief for appellees.


                          January 21, 2003
           Per Curiam.       In this case, two plaintiffs brought an

action under ERISA, 29 U.S.C. § 1001 et seq. (2000), on behalf of

themselves and class members, against the sponsors of several

employee health benefit plans and, in one case, against a related

non-profit     entity     that   provides    prescription      medication      to

employees covered by one of the plans.                The plans have fixed

"copayment" requirements (e.g., $5.00 per prescription), and, in

some instances, the required copayment exceeds the actual cost of

the medication to the plan (although in many others the drugs are

far more expensive than the copayment).

           The gist of the plaintiffs' claim is that whenever the

copayment exceeds the actual cost of the prescribed medicine to the

plan,   the    excess     represents    money     wrongly    taken   from    the

beneficiary, comprising a violation of the terms of the plan, a

breach of fiduciary duty and/or affirmative misrepresentation.                 In

a thorough and well-reasoned opinion, Judge Saris found that the

plans clearly described what beneficiaries had to pay and that

there was neither a breach of fiduciary duty nor any affirmative

misrepresentation. Alves v. Harvard Pilgrim Health Care, Inc., 204

F. Supp. 2d 198 (D. Mass. 2002).

           We agree with the district court's admirable discussion

of the merits and see no reason to add anything more than our

endorsement.     Standing objections were raised by the defendants in

the   district    court    and   rejected    by   Judge     Saris,   but    these


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objections   have   not   been   reasserted   on   appeal   and   raise   no

jurisdictional bar, so we do not comment upon them.               Like the

district court, we agree that there is no reason to address the

complicated question of what remedies might be appropriate for

various alleged violations because in this instance there was no

violation at all.

          Affirmed.




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