Case 5:20-cv-02255-EJD Document 60 Filed 03/23/21 Page 1 of 19
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`RJ,
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`Plaintiff,
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`v.
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`CIGNA BEHAVIORAL HEALTH, INC., et
`al.,
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`Defendants.
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`Case No. 5:20-cv-02255-EJD
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`ORDER GRANTING IN PART AND
`DENYING IN PART DEFENDANTS’
`MOTIONS TO DISMISS
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`Re: Dkt. Nos. 32, 33
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`In this putative class action suit, Plaintiff “RJ,” as the representative of her beneficiary son,
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`SJ, challenges Defendant Cigna Behavioral Health, Inc.’s (“Cigna”) alleged failure to reimburse
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`covered mental health provider claims at the usual, customary, and reasonable (“UCR”) rates.
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`Presently before the Court are two motions to dismiss; one brought by Cigna and a separate
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`motion brought by Defendant Viant, Inc. (“Viant”). Dkt. Nos. 32-33, respectively. Plaintiff filed
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`oppositions (Dkt. Nos. 40-41) and Defendant filed replies (Dkt. Nos. 42-43). The Court finds it
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`appropriate to take the motions under submission for decision without oral argument pursuant to
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`Civil Local Rule 7-1(b). For the reasons stated below, Defendants’ motions will be granted in part
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`and denied in part.
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`I.
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`BACKGROUND1
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`SJ is a member of a Cigna-administered employee benefit plan (“Plan”) of which he is a
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`beneficiary. Compl. ¶ 32. The Plan is funded by Plaintiff’s employer and is governed by the
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`1 The Background is a brief summary of the allegations in the Class Action Complaint. See Dkt.
`No. 1.
`Case No.: 5:20-cv-02255-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO
`DISMISS
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`Northern District of California
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`United States District Court
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`Case 5:20-cv-02255-EJD Document 60 Filed 03/23/21 Page 2 of 19
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`Employee Retirement Income Security Act of 1974 (“ERISA”). Id. SJ sought treatment for
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`behavioral health disorders, including for mental health and substance use disorders, from Summit
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`Estate, Inc. (“Summit Estate”), a licensed and accredited treatment provider. Id. ¶ 173. The
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`healthcare provider contacted Cigna to verify out-of-network (“OON”) benefits and was told that
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`benefits were paid at 70% of UCR rates until Plaintiff’s out of pocket cost sharing responsibilities
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`were met, and thereafter benefits were paid at UCR rates calculated according to the “MRC-1
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`methodology.” Id. ¶¶ 34, 174. “[B]ased upon Summit Estate’s prior dealings with Cigna and upon
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`the representations made on the phone call and on the plain language of Plaintiff’s employer
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`benefit plan, it was understood by all parties that 100% of MRC-1 was equivalent to 100% of the
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`billed charges of Summit Estate.” Id. ¶ 175.2 Based on Cigna’s representations “and with an
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`understanding of the plain terms of the employer benefit plan,” SJ and his IOP provider contracted
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`for SJ to receive treatment. Id. ¶¶ 37, 176. This contract obligated SJ to pay for any portion of the
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`bills for services not paid by Cigna. Id. ¶ 35.
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`Notwithstanding Cigna’s representations, Cigna sent every claim at issue in the case to
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`Viant for repricing. Id. ¶ 42. Viant purported to offer payments at UCR rates, but in reality, the
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`amount offered bore no relationship to UCR rates as that term is defined in SJ’s Cigna policy. Id.
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`¶¶ 42-45. Viant offered essentially the same flat, lower rate that it offers across the entire country.
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`Id. ¶ 46. This rate is the “product of a secret, proprietary, database and/or pricing method.” Id. ¶
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`52. For every dollar Viant “save[d]” Cigna, Viant received a kick-back. Id. ¶ 47.
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`Cigna never told Plaintiff, SJ or his IOP provider that claims were subject to third party
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`repricing until after SJ and his IOP provider entered into a contract for treatment. Id. ¶ 51. SJ does
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`not have any agreement with Viant that would permit Viant to negotiate with providers on his
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`behalf. Id. ¶ 42. As a result of Cigna’s and Viant’s actions, Cigna allowed only $6,225.12 of the
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`2 Plaintiff alleges generally that healthcare providers ask and are told by Cigna that no prior
`authorization was required prior to rendering intensive outpatient treatment (“IOP”) services, and
`that claims for IOP services were not subject to third-party repricing by Viant. Id. ¶ 34. However,
`it is unclear whether Summit Estate specifically asked and received this information from Cigna.
`Case No.: 5:20-cv-02255-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO
`DISMISS
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`Case 5:20-cv-02255-EJD Document 60 Filed 03/23/21 Page 3 of 19
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`$51,175.00 billed for IOP services (or 12% of billed charges). Id. ¶ 178. SJ was left responsible
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`for the balance. Id. ¶ 179. SJ paid the amount owing on the balance bill directly to his provider. Id.
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`¶ 102. Cigna did not issue an “adverse benefit determination” in an Explanation of Benefits
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`(“EOB”) letter, and consequently SJ is unable to appeal the underpayment under ERISA. Id. ¶¶
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`62-64.
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`Plaintiff asserts the following claims on behalf of SJ: (1) violations of RICO, 18 U.S.C. §
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`1962(c) against both Defendants; (2) underpayment of benefits in violation of ERISA §
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`502(a)(l)(B) against Cigna; (3) breach of plan provisions in violation of ERISA § 502(a)(1)(B)
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`against Cigna; (4) failure to provide accurate materials and a request for declaratory and injunctive
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`relief against Cigna in violation of ERISA § 502(c); (5) violation of fiduciary duties of loyalty and
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`duty of care under ERISA § 502(a)(3) and a request for declaratory and injunctive relief against
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`Cigna; (6) violation of fiduciary duty of full and fair review under ERISA § 502(a)(3) and a
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`request for declaratory and injunctive relief against Cigna; (7) declaratory and injunctive relief
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`pursuant to ERISA § 502(a)(3) against both Defendants; and for (8) “Other Appropriate Equitable
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`Relief” against both Defendants under ERISA § 502(a)(3). Id. ¶¶ 193-295.
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`II.
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`STANDARDS
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`Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient
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`specificity “to give the defendant fair notice of what the . . . claim is and the grounds upon which
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`it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted).
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`A complaint which falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim
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`upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
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`To survive a Rule 12(b)(6) motion to dismiss, the complaint “must contain sufficient
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`factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
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`Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp., 550 U.S. at 570). A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged. Id.
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`Case No.: 5:20-cv-02255-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO
`DISMISS
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`Northern District of California
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`United States District Court
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`

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`Case 5:20-cv-02255-EJD Document 60 Filed 03/23/21 Page 4 of 19
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`In evaluating the complaint, the court must generally accept as true all “well-pleaded
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`factual allegations.” Iqbal, 556 U.S. at 664. The court must also construe the alleged facts in the
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`light most favorable to the plaintiff. See Retail Prop. Trust v. United Bhd. Of Carpenters &
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`Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014) (the court must “draw all reasonable inferences
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`in favor of the nonmoving party” for a Rule 12(b)(6) motion). The court, however, “does not have
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`to accept as true conclusory allegations in a complaint or legal claims asserted in the form of
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`factual allegations.” In re Tracht Gut, LLC, 836 F.3d 1146, 1150-51 (9th Cir. 2016) (citing Bell
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`Atl. Corp., 550 U.S. at 555-56); see also Sprewell v. Golden State Warriors, 266 F.3d 979, 988
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`(9th Cir. 2001) (“Nor is the court required to accept as true allegations that are merely conclusory,
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`unwarranted deductions of fact, or unreasonable inferences.”).
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`III. DISCUSSION
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`Cigna argues that the Complaint should be dismissed in its entirety. Specifically, Cigna
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`contends that (1) as to the second claim for underpayment of benefits and third claim for breach of
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`plan provisions, Plaintiff does not identify any terms in her ERISA Plan that required Cigna to pay
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`Summit Estate’s claim at 100% of the billed charges, and in fact, the Plan does not require Cigna
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`to pay at that rate; (2) the fourth claim for failure to provide accurate materials cannot be
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`maintained against Cigna because Cigna is not the plan administrator; (3) the fifth claim for
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`violation for fiduciary duties is duplicative; (4) the sixth claim for violation of fiduciary duties is
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`duplicative, cannot be asserted against Cigna because Cigna is not the Plan, and Plaintiff cannot
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`show entitlement to 100% of the billed charges; (5) the seventh and eighth claims are duplicative;
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`and (6) the RICO claim fails because Plaintiff does not plausibly allege an association-in-fact
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`enterprise and predicate acts.
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`Viant seeks dismissal of the three claims pled against it, namely the RICO claim and the
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`seventh and eighth claims for equitable relief. Viant contends that all three claims sound in fraud
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`and are subject to dismissal for failure to plead fraud with the requisite particularity required under
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`Federal Rule of Civil Procedure 9(b). As to the RICO claim, Viant argues that Plaintiff fails to
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`Case No.: 5:20-cv-02255-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO
`DISMISS
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`Northern District of California
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`United States District Court
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`Case 5:20-cv-02255-EJD Document 60 Filed 03/23/21 Page 5 of 19
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`allege with particularity a pattern of racketeering activity and an association-in-fact enterprise.
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`A.
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`ERISA CLAIMS
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`1.
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`Second and Third Claims
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`In the second and third claims, Plaintiff seeks unpaid benefits pursuant to ERISA §
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`502(a)(1)(B), 29 U.S.C. § 1132(a)(l)(B) equal to 100% of billed charges. Compl. ¶¶ 174-5, 252,
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`261. To state a claim under Section 502(a)(1)(B), “a plaintiff must allege facts that establish the
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`existence of an ERISA plan as well as the provisions of the plan that entitle it to benefits.” Almont
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`Ambulatory Surgery Ctr., LLC v. UnitedHealth Grp., Inc., 99 F. Supp. 3d 1110, 1155 (C.D. Cal.
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`2015) (citation and internal quotation marks omitted).
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`Here, Plaintiff does not point to any particular provision or term in the Plan that requires
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`Cigna to reimburse for IOP services at UCR rates or at 100% of billed charges. Accordingly,
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`Cigna contends that the Plaintiff’s second and third claims for benefits under the Plan are subject
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`to dismissal. In Bristol SL Holdings, Inc. v. Cigna Health & Life Ins. Co., the court dismissed a
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`claim for benefits because the plaintiff merely alleged it “believe[d]” most of its 106 patients had
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`ERISA plans. 2019 WL 6329645, at *2 (C.D. Cal. Sept. 24, 2019); see also Simi Surgery Ctr., Inc.
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`v. Conn. Gen. Life Ins. Co., 2018 WL 6332285, at *3 (C.D. Cal. Jan. 4, 2018) (dismissing
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`assignee’s claim for benefits under 173 purported ERISA plans for, among other things, failure to
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`identify “the plan terms that allegedly entitle [plaintiff] to benefits”). In Glendale Outpatient
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`Surgery Ctr. (“GOSC”) v. United Healthcare Servs., the Ninth Circuit affirmed dismissal of
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`plaintiff’s ERISA claim because the complaint failed to identify “(i) any ERISA plan, apart from
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`vague references to anonymous patients who allegedly assigned rights to GOSC; or (ii) any plan
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`terms that specify benefits that the defendants were obligated to pay but failed to pay.” 805 Fed.
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`App’x 530, 2020 WL 2537317, at *1 (9th Cir. May 19, 2020). The Ninth Circuit also observed
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`that the pleading deficiencies “[we]re exacerbated by GOSC’s decision to lump 44 separate events
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`— presumably involving distinct ERISA plans, coverage provisions, medical procedures, and
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`insurer communications — into a single set of generalized allegations.” Id.
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`Case No.: 5:20-cv-02255-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO
`DISMISS
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`Northern District of California
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`Case 5:20-cv-02255-EJD Document 60 Filed 03/23/21 Page 6 of 19
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` Unlike in Bristol and GOSC, the Complaint here is based on more than a belief and
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`includes factual allegations to support Plaintiff’s claims. Plaintiff identifies her Plan and alleges
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`unequivocally that her Plan is governed by ERISA and that SJ is a beneficiary of that Plan. Compl.
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`¶ 32. Further, Plaintiff alleges that “SJ’s insurance plan was an MRC I plan.” Id. ¶ 22. Plaintiff
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`alleges that SJ’s healthcare provider contacted Cigna for verification of benefits (id. ¶ 34, 174);
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`Cigna represented it would reimburse the claims at issue at UCR rates (id. ¶ 21), and that after
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`Plaintiff reached the out of pocket maximum, Cigna “would pay according to MRC-1
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`methodology which translates to 100% of billed charges” (id. ¶ 174). These allegations are
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`sufficient to plead not only the existence of an ERISA plan but also a Plan provision requiring
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`Cigna to pay benefits calculated according to the MRC-1 methodology. See, e.g., Forest
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`Ambulatory Surgical Assocs., L.P. v. United HealthCare Ins. Co., 2011 WL 2748724, at *5 (N.D.
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`Cal. July 13, 2011) (“To state a claim under [Section 502(a)(1)(B)], a plaintiff must allege facts
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`that establish the existence of an ERISA plan as well as the provisions of the plan that entitle
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`[him] to benefits.”); see also Reiten v. Blue Cross of Cal., 2020 WL 1032371, at *2 (C.D. Cal. Jan.
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`23, 2020) (same). Although Plaintiff does not cite to a specific Plan term or provision by page or
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`paragraph, that level of detail is not required at the pleading stage. See Forest Ambulatory, 2011
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`WL 2748724, at *5 (“Although the allegations in the complaint do not need to describe a given
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`plan in detail, such as to identify each plan’s policy number, the allegations must be sufficient to
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`raise the existence of an ERISA plan above [a] speculative level.”) (quoting In re Managed Care
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`Litig., 2009 WL 742678, at *3 (S.D. Fla. Mar. 20, 2009)).
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`Further, Plaintiff alleges that Cigna “reported, in both plan language and on telephonic
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`verification of benefits, that it would reimburse patients and/or their assignees at the UCR for
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`MRC I policies.” Compl. ¶ 10. The Complaint also alleges that “based upon Summit Estate’s prior
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`dealings with Cigna and upon the representations made on the phone call and on the plain
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`language of RJ’s employer benefit plan, it was understood by all parties that 100% of MRC-1 was
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`Case No.: 5:20-cv-02255-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO
`DISMISS
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`Case 5:20-cv-02255-EJD Document 60 Filed 03/23/21 Page 7 of 19
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`equivalent to 100% of the billed charges of Summit Estate.” Id. ¶ 175.3 Plaintiff’s allegations are
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`sufficient to give rise to a “reasonable inference [that Cigna] is liable” for medical care covered by
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`the terms of [an] ERISA plan[]” at UCR rates calculated under the MRC I methodology. See
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`Glendale, 805 Fed. Appx. at 531.4
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`Cigna insists that Plaintiff’s claims for benefits must be dismissed because Plaintiff fails to
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`allege that Cigna “paid less than her plan’s MRC amount on her son’s claims.” Reply at 1. The
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`Court disagrees. Plaintiff alleges that “SJ has been denied the full benefits available under the
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`Intuit benefit plan.” Compl. ¶ 179. This allegation, coupled with allegations that the Plan required
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`Cigna to pay benefits at UCR rates calculated under the MRC I methodology, is indistinguishable
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`from “an allegation that Cigna paid less than her plan’s MRC amount on her son’s claims.”
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`In its Reply, Cigna argues that it did in fact, pay Summit Estate the MRC, as evidenced by
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`a revised EOB that Cigna filed with its brief. Reply at 2, 4. In particular, Cigna highlights a
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`notation on the revised EOB stating, “THIS IS A CORRECTION OF A PREVIOUSLY
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`PROCESSED CLAIM. . . . YOUR PLAN COVERS OUT OF NETWORK SERVICES TO A
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`MAXIMUM REIMBURSABLE AMOUNT.” Id. at 3. Cigna asks that the Court take judicial
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`notice of this revised EOB because EOBs are referenced in the Complaint. Id.
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`As a general rule, a district court may not consider material beyond the pleadings in ruling
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`on a Rule 12(b)(6) motion. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). One
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`exception to this general rule is the incorporation-by-reference doctrine relied upon by Cigna.
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`Thus, the court may consider the revised EOB. IV Solutions, Inc. v. PacifiCare Life and Health
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`3 In her Opposition brief, Plaintiff argues that Cigna should have used the FAIR Health database to
`calculate pricing. This allegation does not appear in the Complaint and will not be considered. See
`Yamauchi v. Cotterman, 84 F. Supp. 3d 993, 1009 (N.D. Cal. 2015) (“In determining the propriety
`of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff’s moving
`papers, such as a memorandum in opposition to a defendant’s motion to dismiss.”) (quoting
`Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003) (emphasis in original)).
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` 4
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` Moreover, Cigna attached Plaintiff’s Plan to its motion to dismiss. Dkt. No. 32-2. Thus, Cigna is
`well aware of Plaintiff’s Plan and the MRC provision stated therein.
`Case No.: 5:20-cv-02255-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO
`DISMISS
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`Insur. Co., 2006 WL 7888009, at *4 (C.D. Cal. Dec. 19, 2016). However, the incorporation-by-
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`reference doctrine does not permit the court to accept the truth of the matters stated in the revised
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`EOB. In re ECOtality, Inc. Sec. Litig., 2014 WL 4634280, at *3 n.2 (N.D. Cal. Sept. 15, 2014)
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`(considering documents incorporated by reference, but not for the truth of the matters stated
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`therein); Gammel v. Hewlett-Packard Co., 905 F. Supp. 2d 1052 (C.D. Cal. 2012) (court may
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`consider contents of documents under the doctrine of incorporation by reference, but “will not
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`consider these documents for the truth of the matters they assert.”). Thus, at the pleading stage,
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`Cigna cannot rely on the notation in the revised EOB to prove it properly paid benefits calculated
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`using the MRC methodology.
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`Cigna’s motion to dismiss the second and third claims for benefits is denied.
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`2.
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`Fourth Claim Under ERISA § 502(c)
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`In the fourth claim, Plaintiff alleges that Cigna failed to fulfill its obligation to furnish
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`accurate materials summarizing its group health plans, known as SPD materials, under 29 U.S.C. §
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`1022, and failed to supply accurate EOBs, SPDs and other required information under 29 U.S.C. §
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`1132(c). Compl. ¶ 263. Cigna contends that the claim fails because a §502 claim can only be
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`maintained against the plan administrator, and Cigna is the claims administrator, not the plan
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`administrator.
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`ERISA § 502(c) imposes plan disclosure obligations only on the designated plan
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`administrator, i.e., “the person specifically so designated by the terms of the instrument under
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`which the plan is operated.” 29 U.S.C. § 1002(16)(A); Vaught v. Scottsdale Healthcare Corp.
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`Health Plan, 546 F.3d 620, 633 (9th Cir. 2008) (“only the plan ‘administrator’ can be held liable
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`for failing to comply with the reporting and disclosure requirements”). Here, the person designated
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`as plan administrator is Intuit. Decl. of William P. Donovan, Jr. Ex. 1, at 51 (the “Plan
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`Administrator” is the “Employer named above,” i.e., “Intuit Inc.”), Dkt. No. 32-2. Implicitly
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`recognizing that Cigna is not the plan administrator, Plaintiff alleges that “[f]or ERISA Plans that
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`are self-funded, but do not specifically designate a Plan Administrator, Cigna functions as the de
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`Case No.: 5:20-cv-02255-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO
`DISMISS
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` 8
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`Northern District of California
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`United States District Court
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`

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`Case 5:20-cv-02255-EJD Document 60 Filed 03/23/21 Page 9 of 19
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`facto Plan Administrator.” Compl. ¶ 98. This allegation does not cure the defect in Plaintiff’s
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`claim because the Ninth Circuit has rejected the “de facto” theory. See e.g., Bush v. Liberty Life
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`Assurance Co. of Bos., 77 F. Supp. 3d 900, 905 (N.D. Cal. 2015) (citing Ford v. MCI Commc’ns
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`Corp. Health & Welfare Plan, 399 F.3d 1076, 1081-82 (9th Cir. 2005), overruled on other
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`grounds by Cyr v. Reliance Standard Life Ins. Co., 642 F.3d 1202 (9th Cir. 2011)); see also, e.g.,
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`Driscoll v. MetLife Ins., 2016 WL 11529805, at *8 (S.D. Cal. May 2, 2016) (citing Bush).
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`The fourth claim is dismissed.
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`3.
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`Fifth Claim For Breach of ERISA Fiduciary Duties of Loyalty and Due
`Care
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`The fifth claim is brought under 29 U.S.C. § 1132(a)(3). Compl. ¶ 279. Under section
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`1132(a)(3), a civil action may be brought “by a participant, beneficiary, or fiduciary (A) to enjoin
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`any act or practice which violates any provision of this subchapter or the terms of the plan, or (B)
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`to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any
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`provisions of this subchapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3). Plaintiff alleges
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`that Cigna breached its duties of loyalty and due care “by making out-of-network benefit
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`reductions and adverse benefit determinations that were not authorized by the plan documents and
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`were also misrepresented on EOBs sent to the Plaintiff and the Class, causing Plaintiff and the
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`Class to incur, and pay, substantial balance bills at the benefit to Cigna’s bottom line.” Id. ¶ 272.
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`Cigna argues that the section 1132(a)(3) claim should be dismissed because “when relief is
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`available under section 1132(a)(1), courts will not allow relief under § 1132(a)(3)’s catch-all
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`provision.” Mot. at 10 (quoting Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)). As
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`Plaintiff points out, however, the Ninth Circuit has held post-Johnson that a plaintiff may pursue
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`simultaneous claims under sections 1132(a)(1) and 1132(a)(3). Moyle v. Liberty Mut. Ret. Benefit
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`Plan, 823 F.3d 948, 959-62 (9th Cir. 2016). The Ninth Circuit explained that allowing a plaintiff
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`to plead both claims (1) comports with the Supreme Court’s decisions in Varity Corp. v. Howe,
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`516 U.S. 489 (1996) and Cigna Corp. v. Amara, 563 U.S. 421 (2011); (2) adheres to Federal Rule
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`of Civil Procedure 8(a)(3), which allows pleading relief in the alternative; and (3) is consistent
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`Case No.: 5:20-cv-02255-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO
`DISMISS
`
` 9
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`Northern District of California
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`United States District Court
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`

`

`Case 5:20-cv-02255-EJD Document 60 Filed 03/23/21 Page 10 of 19
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`with ERISA’s intended purpose of protecting participants’ and beneficiaries’ interests. Id. at 962.
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`Plaintiff may not, however, obtain double recoveries. Id. at 961.
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`Cigna counters that even under Moyle, a plaintiff must allege a distinct theory of injury,
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`citing Ihde v. United of Omaha Life Ins. Co., 2017 WL 5444551, at *8 (D. Colo. Nov. 14, 2017).
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`In Ihde, plaintiff asserted a claim for benefits under section 1132(a)(1)(B) and a claim for breach
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`of fiduciary duty under sections 1109(a) and 1132(a)(2). The latter claim was based on an
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`allegation that defendant omitted the insurance plan’s name from the Summary Plan Description
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`(“SPD”). The magistrate judge recommended dismissal of plaintiff’s section 1132(a)(3) claim,
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`reasoning that plaintiff failed to allege she was harmed by the omission of the plan’s name in the
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`SPD, and that she could not “repackage” her claim for benefits under the guise of a breach of
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`fiduciary duty claim.
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`Although Plaintiff’s claims for benefits and breach of fiduciary duty overlap substantially,
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`the latter is not just a “repackaging” of the former. In the breach of fiduciary duty claim, Plaintiff
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`seeks injunctive and declaratory relief, as well as removal of Cigna as a fiduciary. Plaintiff alleges
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`that separate and apart from the denial of benefits, Cigna breached its duty as a fiduciary by,
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`among other things, sending EOBs containing misrepresentations, failing to provide accurate
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`information about the methodology applied to calculate UCR rates, and failing to disclose that
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`Cigna would utilize Viant as a repricing agent. Compl. ¶¶ 272, 275-78. Further, unlike in Ihde,
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`Plaintiff’s breach of fiduciary duty claim may entitle her to equitable relief, separate and apart
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`from an award of benefits.
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`Cigna’s motion to dismiss the fifth claim is denied.
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`4.
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`Sixth Claim for Failure to Provide “Full and Fair Review”
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`In the sixth claim, Plaintiff alleges that Cigna failed to comply with its fiduciary duty to
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`provide a “full and fair review” of an “adverse benefit determination” pursuant to 29 U.S.C. §
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`1133. Compl. ¶¶ 280-86. Plaintiff seeks injunctive and declaratory relief to redress the alleged
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`failure to provide a full and fair review. Id. ¶ 286.
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`Case No.: 5:20-cv-02255-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO
`DISMISS
`
` 10
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`Northern District of California
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`United States District Court
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`

`

`Case 5:20-cv-02255-EJD Document 60 Filed 03/23/21 Page 11 of 19
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`
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`Cigna argues that the sixth claim is subject to dismissal because, among other things, a
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`section 1133 claim can only be asserted against a plan, and Cigna is not the Plan. Plaintiff does not
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`provide any response to this argument. The claim is dismissed. See Herzfeld v. Teva Pharm. USA,
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`Inc. Omnibus Welfare Plan, 2019 WL 8647729, at *6 (C.D. Cal. Aug. 26, 2019) (“By its plain
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`language, § 1133 . . . impose[s] duties only upon benefit plans.”).
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`
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`5.
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`Seventh and Eighth Claims for Equitable and Injunctive Relief
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`Plaintiff asserts the seventh claim for equitable relief under 29 U.S.C. § 1132(a)(3)(A) and
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`the eighth claim for equitable relief under 29 U.S.C. § 1132(a)(3)(B). The claims are asserted
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`against both Defendants. Id.
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`Plaintiff does not address these claims in her Opposition to Cigna’s motion. Accordingly,
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`the Court will dismiss the seventh and eighth claim as to Cigna.
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`Viant moves to dismiss the seventh and eighth claims on several grounds. First, Viant
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`argues that the Complaint fails to plead facts to establish Viant’s fiduciary status or any underlying
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`breach of fiduciary duties. The Court disagrees.
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`Claims under §1132 can only be asserted against a fiduciary as that term is defined in
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`ERISA. Brown v. Ca. Law Enf’t Assoc., 81 F. Supp. 3d 930, 934 (N.D. Cal. 2015). A person is a
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`fiduciary with respect to an ERISA plan under three different circumstances:
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`to the extent (i) he exercises any discretionary authority or
`discretionary control respecting management of such plan or
`exercises any authority or control respecting management or
`disposition of its assets, (ii) he renders investment advice for a fee or
`other compensation, direct or indirect, with respect to any moneys or
`other property of such plan, or has any authority or responsibility to
`do so, or (iii) he has any discretionary authority or discretionary
`responsibility in the administration of such plan.
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`29 U.S.C. § 1002(21)(A). Here, the Complaint does not allege that Viant is named as a fiduciary
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`in the Plan. Nor does the Complaint allege that Viant had responsibility or authority over the
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`Plan’s management or administration. Nevertheless, Plaintiff argues that Viant had responsibility
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`and authority over Plan assets by virtue of negotiating and repricing patient claims. In Monterey
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`Case No.: 5:20-cv-02255-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO
`DISMISS
`
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`Northern District of California
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`

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`Case 5:20-cv-02255-EJD Document 60 Filed 03/23/21 Page 12 of 19
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`Peninsula Horticulture, Inc. v. Emp. Benefit Mgmt. Servs., Inc. (hereinafter “MPH”), the plaintiff
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`asserted a similar theory of fiduciary liability. 2020 WL 2747846 (N.D. Cal. May 27, 2020). The
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`plaintiff alleged that defendant had authority and control over the plan assets “by determining the
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`amount and recipient of benefit payments,” issuing checks and paying approved claims. Id. at *3.
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`The MPH court held that these allegations plausibly suggested that defendant had control over
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`disposition of plan assets, and therefore denied defendant’s motion to dismiss the breach of
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`fiduciary claim.
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`As in MPH, Plaintiff alleges that Viant had authority and control over Plan assets. Plaintiff
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`alleges that Viant “determined the reimbursement rate for every underpaid claim in the present
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`litigation.” Compl. ¶ 7. Viant counters that other allegations in the compliant show that Viant did
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`not exercise authority or control over Plan assets. Specifically, Viant points to allegations
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`indicating that Viant could only negotiate and/or reprice benefit claims pursuant to strict pricing
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`terms established by Cigna. See id. ¶¶ 53, 112, 116-19, 128. However, there is nothing in Section
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`1002(21)(A) to suggest that a person or entity with limited control over plan assets cannot be
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`considered a fiduciary. Plaintiff’s allegation, although thin, is sufficient at the pleading stage to
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`plausibly suggest that Viant is a fiduciary by virtue of its alleged authority and control over plan
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`assets. See Josef K. v. California Physicians’ Serv., 2019 WL 2342245 at *7 (N.D. Cal.)
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`(“’Congress commodiously imposed fiduciary standards on persons whose actions affect the
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`amount of benefits retirement plan participants will receive’. . . . Thus, although fiduciary status
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`does not attach to a party who ‘merely perform[s] ministerial duties or processes claims,’ a party
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`may qualify as a fiduciary ‘if it has the authority to grant, deny, or review denied claims.’”
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`(internal citations omitted)).
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`Viant raises several other grounds for dismissal of the seventh and eighth claims, which the
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`Court finds unnecessary to address at this time. This is because the claims do not meet the basic
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`pleading requirements of Rule 8: to give notice of what the claims are and the grounds upon which
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`they rest. Plaintiff prefaces each claim by stating, “Plaintiff brings this count . . . only to the
`
`Case No.: 5:20-cv-02255-EJD
`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO
`DISMISS
`
` 12
`
`Northern District of California
`
`United States District Court
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`

`

`Case 5:20-cv-02255-EJD Document 60 Filed 03/23/21 Page 13 of 19
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`extent that the Court finds that injunctive relief sought to remedy Counts III through VI are
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`unavai