The Employee Retirement Income Security Act (ERISA) plan for litigation addresses participant reimbursement of the plan for costs and expenses recovered from third parties, as well as participant restitution for overpayments by the plan. The Supreme Court recently affirmed the importance of the ERISA plan to ERISA benefit claim litigation in US Airways v. McCutchen, a case involving plan reimbursement. Careful drafting of an ERISA plan can provide an employer a greater likelihood of successful recovery for restitution and reimbursement.
Part one of this three-part series on preparing an ERISA plan for litigation addressed exhaustion of administrative remedies, gaining the benefit of discretionary decision-making, and setting the litigation forum. Part two addressed defining the statute of limitations and the benefit claim accrual date. Part three addresses reimbursement and restitution – two issues keenly linked to plan language that increases predictable outcomes and the likelihood of success in ERISA litigation.