Are All ERISA Fiduciaries Created Equal?

Apparently not in the Third Circuit, at least when it comes to the application of the fiduciary exception to the attorney client privilege. Addressing an issue of first impression, the Third Circuit recently held in Wachtel v. Health Net, Inc., Nos. 06-3031 & 06-3032, 2007 WL 958572 (3d Cir. Apr. 2, 2007), that while the fiduciary exception may apply to ERISA plan administrators and trustees, it does not apply to insurance companies that processes the claims of ERISA plan beneficiaries, make discretionary coverage and benefits decisions, and make payments to plan beneficiaries—even though such companies are ERISA fiduciaries.

Doug Pepe

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