Two federal district courts have recently ruled against employers seeking to dismiss class action lawsuits filed against them by employees and former employees who, as smokers, paid higher health premiums than non-smokers – a common, legally-authorized wellness feature of many group health plans.
The rulings – issued recently by the Western District of Missouri in Mehlberg v. Compass Group USA, Inc and by the Eastern District of Virginia in Bokma v. Performance Good Group, Inc. – are notable not just for their potential implications for the more than 30 other similar cases now pending in federal courts across the country, but also for all employers who sponsor any type of ERISA-covered employee benefit plan.
There are five concerning key elements of these cases, each of which is discussed further below:
- We have seen an explosion in many types of ERISA lawsuits, including suits regarding defined contribution plan fees, forfeitures, investment underperformance, prohibited transactions, and pension risk transfers. It appears in many ways that tobacco surcharge cases are moving forward as the next wave of cases.
- The court decisions allow the plaintiffs to sue without any showing of any injury, which is legally incorrect and is likely to open the door to far more tobacco surcharge cases, and possibly to create new litigation theories in the retirement plan area.
- One of the courts in particular shows an almost cavalier view of the motion to dismiss, noting that the defendants will have an ability to re-raise their legal arguments after discovery. This approach is inconsistent with the purpose of motions to dismiss, which is to weed out baseless cases before discovery so that plaintiffs with a baseless case cannot use the cost of discovery to effectively force settlements on defendants.
- The other court effectively ruled that the fact that a plan administrator can have discretion in its administration of a plan means that somehow all administrative actions are fiduciary in nature, even basic ministerial acts such as explaining how the plan works. This is a dangerous precedent that could be used in any ERISA litigation.
- Finally, the courts ruled against the defendants on key technical issues related to the tobacco surcharge rules, again paving a path for more such suits.
In short, the “tobacco surcharge” cases are a relatively new development, but they are part of a broader trend of ERISA class action fiduciary litigation that arguably threatens to upset the careful balance that ERISA strikes between the legitimate interests of plan sponsors and participants. As a result, plan sponsors are increasingly being forced to put the threat of the plaintiffs’ bar ahead of the interests of the business and their employees when making critical decisions about how to design and operate their plans, or whether to continue offering them at all.
It will take more than two preliminary rulings by district courts to determine the full impact of these cases, and whether they will be the tipping point for plan sponsors. But the early signs are not encouraging.
Key Point #1: The plaintiffs’ bar is trying to expand the wave of fiduciary litigation into tobacco surcharge claims regarding health plans, and so far is having success.
As chronicled here before, ongoing “excessive fee” claims against 401(k) plan fiduciaries and pension rights transfer (PRT) claims against defined benefit plan sponsors are but two examples of the ongoing surge in ERISA fiduciary class action lawsuits. Until recently, group health plans have largely been spared. The “tobacco surcharge” claims represent one of two lines of cases that are trying to change that.
In one line of cases, fiduciaries are being targeted for using pharmacy benefit managers (PBMs) to design and administer their prescription drug benefits. Each of the three main cases – Knudsen v. MetLife Group (No. 23-2420 (3rd Cir., September 25, 2024)), Lewandowski v. Johnson and Johnson (No. 3:24-cv-00671 (D.N.J., January 24, 2025)), and Navarro v. Wells Fargo & Company (24-cv-3043 (D. Minn., March 24, 2025)) – so far have failed to make it past the pleading stage, as the courts have concluded the plaintiffs lacked standing to sue.
The “tobacco surcharge” cases, so far at least, have been a different story.
What are the “tobacco surcharge” lawsuits about?
Pursuant to the “HIPAA nondiscrimination rule” – so-called because it was enacted as part of the Health Insurance Portability and Accountability Act (HIPAA) of 1996 – ERISA covered group health plans may not discriminate against individual participants with respect to eligibility, benefits, or premiums based on a “health factor.” The relevant health factors include things like the individual’s health status, medical condition (including both physical and mental illnesses), claims experience, and medical history. People who smoke are addicted to nicotine, which is a medical condition – and thus a health factor.
There is an exception to this rule for “wellness programs” that satisfy certain statutory and regulatory criteria. Employers who sponsor group health plans often take advantage of this “wellness program” exception in order to encourage participants to live healthier lifestyles, with the goal of reducing claims and limiting the incidence of chronic disease, among other things.
According to the Kaiser Family Foundation’s Employer Health Benefits 2024 Annual Survey, the three most common types of wellness programs are smoking-cessation programs, weight-loss programs, and access to lifestyle or behavioral coaching. 79% of employers with 200 or more workers offer at least one of these three types of wellness programs. Of this group, 69% offer a smoking-cessation wellness program.
Wellness programs can take many forms, and only those that are connected to the terms of the individual’s participation in the group health plan are subject to the HIPAA nondiscrimination rules. For example, a typical smoking-cessation wellness program might impose different employee premium contribution requirements based on whether a participant is a smoker. Some plans might refer to the lower premiums paid by non-smokers as a “discount,” while others might refer to the higher premium paid by smokers as a “surcharge.”
Briefly, the relevant criteria relate to the size of the reward, the availability of a “reasonable alternative standard” to obtain the reward, and the related notice requirements. The size of the reward generally may not exceed 30% of the cost of employee-only coverage under the plan, although it can be as much as 50% in the case of smoking cessation programs.
The plan also must provide a “reasonable alternative standard” – or a waiver of the otherwise applicable standard – to achieve the reward. For example, a smoker might be required to participate in a smoking cessation wellness program as an alternative to actually quitting smoking, in order to get the reward. The regulations do not prescribe any specific “reasonable alternative standard,” but they do provide guidelines for determining what is reasonable. For example, the time commitment required must be “reasonable.” Additionally, if an individual’s personal physician concludes the plan’s standard is not medically appropriate for that individual, the plan must accommodate the physician’s recommendations.
Finally, the plan must give notice of the availability of a “reasonable alternative standard” in all plan materials that describe the terms of the wellness program. The regulations provide that the notice must also include a statement that recommendations by an individual’s personal physician will be accommodated. However, the regulations also make clear that information about the “reasonable alternative standard” and accommodating a physician’s recommendations is not required in plan materials that only mention the wellness program, without describing its terms.
Specific allegations involve details about compliance with the wellness plan exception
At the heart of each of the “tobacco surcharge” cases is whether the defendant plan sponsor’s smoking cessation wellness program satisfies all of the requirements for the wellness plan exception. The specific allegations vary case-by-case, but certain common themes have emerged.
One is that the plan has failed to satisfy the notice requirement because it does not include information about the “reasonable alternative standard” in all the relevant plan materials. Another is that the notice provided is inadequate because it fails to include information about accommodating a physician’s recommendation for a specific individual. As noted above, not every mention of the existence of the wellness program requires information about the reasonable alternative standard, a point that the plaintiffs (as well as the courts, so far) have ignored.
Then there are questions about the design of the reward itself. The statute provides that the “full reward” must be available to all “similarly situated individuals,” and that all such individuals must be given the opportunity to qualify for the reward at least once each year. But if the alternative standard is completing a smoking cessation class or other program, there is some debate about whether participants who complete the program in the middle of the year are entitled to a retroactive rebate of the tobacco surcharge they have already paid. In sub-regulatory guidance, the Department of Labor has indicated that pro-rated rewards are permissible in some circumstances as long as the plan gives participants the opportunity to enroll in the smoking cessation program at the beginning of the plan year (e.g., during annual enrollment).[i]
The plan sponsors in the two cases at issue have taken the position that they are not required to refund the surcharge collected to date, but instead only must allow these individuals to pay the non-smoker premium prospectively for the rest of the plan year. According to plaintiffs, this denies them the “full reward.”
What does any of this have to do with fiduciary duties under ERISA?
ERISA does not provide a private cause of action specifically for violations of the HIPAA nondiscrimination rules. Thus, the plaintiffs in the “tobacco surcharge” cases are seeking relief under ERISA sections 502(a)(2) and (a)(3). Briefly, section 502(a)(2) authorizes participants to bring a civil action for “appropriate relief” under ERISA section 409, which makes fiduciaries “personally liable” for losses to the plan resulting from any breach of their fiduciary duties.
Section 502(a)(3) empowers participants to bring a civil action to “enjoin any act or practice which violates any provision of” ERISA Title I, or to obtain “other appropriate equitable relief” to redress such violations. As noted in the Performance Food Group case, in order to state a claim under either ERISA section 502(a)(2) or 502(a)(3), a plaintiff must show both that the defendant was an ERISA fiduciary, and that they breached their ERISA fiduciary duties.
As a result, it is not enough for ERISA group health plan participants to claim that a smoking cessation or other wellness program fails to meet all the requirements of the HIPAA nondiscrimination rules in order to bring a civil action under ERISA. They also must show these violations are fiduciary in nature.
Although plan sponsors typically are ERISA fiduciaries with respect to their plans, the law has long recognized that everything they do with respect to a plan is not a fiduciary act. Things like deciding to sponsor, modify, or terminate a plan are non-fiduciary “settlor” functions. Plan design decisions are also settlor functions. This distinction is critical, because designing a plan to impose higher premium contributions on employees who smoke might otherwise be hard to reconcile with the duty of loyalty that ERISA fiduciaries owe to plan participants, among other things.
In addition to the distinction between “settlor” and fiduciary functions, the law also differentiates between fiduciary and non-fiduciary actions that a plan sponsor might take with respect to maintaining and administering their plans. Simply administering a plan according to its terms is generally not a fiduciary act. But actions that involve discretion, such as interpreting ambiguous plan terms, are fiduciary in nature. This is commonly referred to as the “two hats” doctrine.
The line between what is and is not a fiduciary act is not always readily apparent. But it is a critical distinction at every stage of a lawsuit involving ERISA fiduciary claims, including these “tobacco surcharge” cases. If the plaintiffs fail to plausibly state a claim for a breach of fiduciary duty, then they have no claim under ERISA section 502(a)(2) 502(a)(3) and their cases should be dismissed. Of course, there can be no fiduciary breach if the allegations against the plan sponsor involve non-fiduciary actions.
Key Point #2: Both court decisions set a very low, almost nonexistent bar for a plaintiff to have standing in a tobacco surcharge case.
The only allegations of harm or injury in the two cases related to the surcharge that the plaintiffs paid. Under the law, such a surcharge is perfectly permissible if it is pursuant to a wellness program that satisfies the relevant requirements, which include the availability of a properly disclosed “reasonable alternative standard” for having the surcharge waived. So, the lawsuits challenged the adequacy of the defendants’ smoking cessation wellness programs and the notices provided with respect to such programs.
However, the plaintiffs in both cases did not participate in the smoking cessation wellness program, which was the only way under the plan that they – as tobacco users – could have avoided the surcharge. The plaintiffs did not even allege that they wanted to participate in the smoking cessation wellness program. So, where is the connection between the alleged inadequacies of the wellness programs and the plaintiffs’ alleged injuries?
In both cases, the courts found that by alleging that the surcharges were illegal, the plaintiffs sufficiently established standing. But the imposition of a surcharge only harms the plaintiffs if the plaintiffs wanted to participate in a legally sufficient smoking cessation wellness program and were prevented from doing so by illegal actions. Here the plaintiffs did not allege any interest in participating in a smoking cessation wellness program, hence they had no actionable injuries.
This extremely low bar for standing raises concerns in two respects (aside from being legally incorrect). First, the theory underlying the courts’ conclusions could be extended in strange ways. For example, assume an employee is eligible to participate in a 401(k) plan that provides an employer match but does not contribute to a plan. Could such an employee join a lawsuit alleging excessive fees, claiming that the employee should have received the match? That obviously seems absurd, but the courts’ reasoning would support that. The courts required two things: (1) an ERISA violation, which could be the excessive fees, and (2) an injury – which could be the failure to receive a match. If an employee can sue for a rebate of a surcharge without even attempting to take advantage of the option to participate in a required smoking cessation wellness program, why can’t an employee sue for a match without making a contribution?[ii] Again, this seems farfetched, but it is only marginally more farfetched than the courts’ analyses.
Second, these court decisions open the door to far more litigation in the tobacco surcharge area, because plaintiffs need not show any actual harm to themselves in order to sue and receive a rebate.
Key Point #3: The first district court decision in a tobacco surcharge case set a disturbingly low bar for plaintiffs to overcome a motion to dismiss, by expressly deferring needed scrutiny of the legal issues until after discovery.
The first ruling was issued by the U.S. District Court for the Western District of Missouri in the Compass Group case. In that case, the plan sponsor concisely argued that because the participants’ complaint “takes aim at the terms of the Plan’s tobacco wellness program, i.e., its plan design, it falls outside the scope of ERISA’s fiduciary duties and cannot give rise to a claim under ERISA.”
The district court briefly acknowledged the distinction between settlor and fiduciary functions, but then proceeded to dismiss – without any meaningful analysis – the plan sponsor’s objections to the plaintiffs’ characterization of their actions with respect to the tobacco wellness program as “fiduciary.” Instead, the court quoted passages from the complaint asserting a fiduciary breach by “assessing and collecting the tobacco surcharge in violation of the law and in violation of the terms of the Plan, as the receipt of additional funds reduced its own costs associated with funding the plan,” and by failing to “deposit the tobacco surcharge amounts into the Plan,” and then concluded “these allegations sufficiently allege that Defendant acted as a fiduciary and engaged in prohibited transactions.” This analysis is very troubling:
- Notably, the court did not specify how the Defendant violated the terms of the Plan, apparently holding that a mere allegation that this occurred was sufficient to survive a motion to dismiss.
- The court also did not scrutinize the allegation that the Defendant engaged in a prohibited transaction by failing to hold the surcharges in trust, which is actually not a violation of the law, as explained below in the discussion of the second case.
- The court then expressly minimized the importance of the motion to dismiss by simply stating that the “Defendant may reassert its arguments following discovery.”
From a broad perspective, the most troubling aspect of this case was the almost cavalier approach that the court took to the motion to dismiss, effectively saying that there was time after discovery to dig into the Defendant’s arguments. For example, a mere allegation that the Defendant failed to follow the Plan’s terms was sufficient, without an explanation of what the failure was. This approach is missing the entire point of the motion to dismiss. Plaintiffs should not be able to impose millions of dollars of discovery costs without judicial scrutiny. Protecting defendants from baseless litigation is the purpose of a motion to dismiss and thus the suggestion that there is time later to reexamine the Defendant’s arguments is inappropriate.
Key Point #4. The second district decision in a tobacco surcharge case seems to have transformed all plan administration into a fiduciary act, dramatically expanding the potential scope of fiduciary litigation.
The U.S. District Court for the Eastern District of Virginia’s ruling in the Performance Group case was more thorough in its analysis, but its reasoning was no less concerning, as it effectively transformed every plan administrator into a fiduciary with respect to all of its actions, regardless of whether the actions involve discretion.
The district court stated that “by alleging that Defendant acts as Plan Administrator, Plaintiffs satisfy the initial threshold to plead that Defendant acts as a fiduciary in administering the Plan.” In other words, in the court’s opinion simply being a plan administrator transforms all acts, even nondiscretionary acts, into fiduciary acts. That is clearly not the law. The district court acknowledged, as discussed above, that ERISA fiduciaries can “wear two hats,” but its analysis ignored that point.
The plan sponsor argued that “it acted merely as a settlor in setting the terms of its wellness program and imposing the surcharge on any participants who failed to comply with those terms.” Not so, according to the district court. Instead of focusing on the “selection of the terms that would apply to the Plan,” the court asserted that the plaintiffs are challenging the plan sponsor’s “repeated discretionary decisions against retroactively reimbursing qualifying participants.”
The only evidence the court cites in support of this conclusion is a “2023 meeting” in which someone speaking on behalf of the plan sponsor told one of the named defendants and others that the surcharge would not be retroactively reimbursed when someone completes the smoking cessation program. That statement is consistent with information provided in the plan’s “Benefits Guide.” Unfortunately, the court does not try to explain why accurately explaining the program’s terms to participants is a de facto act of “discretion” that is subject to fiduciary scrutiny.
If administering the clear terms of a plan is a fiduciary act, then it would become very simple to survive a motion to dismiss. Plans impose limits and conditions on benefits. If the administration of those limits and benefits is a fiduciary act, then such administration is contrary to the fiduciary’s duty to act in the sole interest of the participants, who would be better off without any limits or conditions on benefits.
Finally, the district court, like the court in the Compass Group case, asserted the plan sponsor exercised discretion and control over “plan assets” by commingling the tobacco surcharges it collected with its own general assets, thus using the surcharge for its own self-interest by reducing its own costs associated with its group health plan.
Wellness programs simply impose different employee premium contributions on individuals who do not meet the wellness program’s requirements. Employee premium contributions are considered ERISA plan assets, although the Department of Labor’s longstanding position is that these amounts do not have to be held in trust or otherwise segregated from the plan sponsor’s general assets, even if the plan is self-insured.[iii] These funds still must be used to pay benefits or reasonable plan administration expenses, but this typically is not an issue because the amount of claims that are also being paid from the plan sponsor’s general assets usually will exceed the amount of premium contributions being collected from employees. This is true even when wellness programs are involved in setting premium contributions.
According to the district court’s reasoning, every employer with a self-insured plan that does not maintain a trust to hold employee premium contributions is committing a prohibited transaction.
If the pleading standards articulated by these two district courts become the norm, it is hard to imagine any district court granting a motion to dismiss in any of the 30 or more “tobacco surcharge” cases currently pending. And many more such cases almost surely will follow, because plaintiffs’ attorneys are well aware that overcoming a motion to dismiss gives them the enormous leverage of discovery to negotiate a settlement.
However, the impact will not be limited just to “tobacco surcharge” and other wellness program-related claims. It is extremely troubling that plaintiffs can survive a motion to dismiss by simply saying that (1) the implementation of the plan’s terms is a fiduciary act, regardless of how ministerial, and (2) that implementation has been done in a self-interested manner, even if it is exactly in accordance with the plan’s terms. That theory could be used to support almost any ERISA fiduciary lawsuit, involving both retirement and health and welfare benefit plans.
Key Point #5. The two decisions resolved unclear issues against the defendants, further opening the door to more tobacco surcharge litigation.
The courts also held that the Plaintiffs sufficiently alleged three points, based on some highly questionable interpretations of the law.
First, the Compass Group court favorably cited a previous holding in Lipari-Williams v. Missouri Gaming Company LLC, another tobacco surcharge case from the Western District of Missouri, that tobacco surcharges are not permissible, but non-smoker discounts are. This is a somewhat bewildering semantic distinction, since the economic effects are identical. In other words, if a non-smoking participant is required to pay $$400 and a smoker is required to pay $600, it makes no sense to say that calling the extra $200 a surcharge is impermissible, but calling it a $200 discount for non-smokers is fine.
In addition to making no sense, that holding directly contradicts the HIPAA nondiscrimination regulations. Those regulations explicitly use the term “reward” to refer to both discounts and surcharges, and make clear that these rewards can be permissible, regardless of the nomenclature used.
(The Lipari-Williams case settled for $5.5 million in 2023. Of that amount, the class members ended up reportedly collecting approximately $370 each.)
The next allegation related to the adequacy of the defendants’ disclosures. In particular, as the court put it in the Compass Group case, the claim was that “all” plan materials referencing the surcharge must also explain that a physician’s recommendations with respect to the reasonable alternative standard would be accommodated. The Compass Group court fully embraced this, and the Performance Food Group court cited Compass Group’s “persuasive authority” as “compelling,” even though the statute and the HIPAA nondiscrimination regulations state that this additional information is not required every time a plan notice mentions a wellness program. Instead, it is required only when the notice is describing the wellness program’s terms.
Third is the defendants’ allegations that plan sponsors are not allowed to waive the surcharge only on a proactive basis when the smoking cessation program is completed after the plan year has started. The Department of Labor has arguably provided confusing guidance on this point, but statements made in the preamble to the 2013 final HIPAA nondiscrimination regulations and 2014 sub-regulatory guidance are not necessarily inconsistent. Specifically:
- The preamble to the 2013 final regulations says that if it takes some time to complete the reasonable alternative standard, the reward must be provided retroactively to the beginning of the plan year.
- The 2014 sub-regulatory guidance specifically allows a pro-rated reward when a plan voluntarily chooses to allow participants to enroll in the wellness program mid-year, in addition to the pre-year opportunity to enroll.
Taken together, the Department of Labor’s statements could reasonably be read to require rebates of surcharges in cases where a participant starts the smoking cessation program when it is first-offered at the beginning of the year and completes it during the year, but not when the plan sponsor gives participants an additional non-required option to start the smoking cessation program in the middle of the year.
Unfortunately, the courts in these two cases do not seem at all curious about how the plans’ wellness programs actually work, or whether it should even matter. Instead, they simply dismiss the 2014 sub-regulatory guidance as “placing a limitation on opportunities for enrollment in a wellness program,” even though that guidance clearly states that plans can provide pro-rated rewards “for mid-year enrollment in a wellness program for that plan year.”
In sum, the initial rulings in these two cases do not merely favor the plaintiffs. They also display a willingness by these two district courts to embrace any and every allegation by the plaintiffs in these tobacco-surcharge cases, no matter how baseless they may be. As a result, many more lawsuits of this type will likely be filed, which might lead employers to eventually conclude that wellness programs are just ERISA litigation traps that are better avoided altogether.
If that happens, in addition to everything else discussed above, the courts and plaintiffs’ attorneys will have achieved one final very counterproductive result by successfully undermining a key legislative health policy objective.
As enacted in 1996 by a Republican Congress and a Democratic President, the HIPAA nondiscrimination rule specifically provided that it was not to be construed to prevent plan sponsors from “establishing premium discounts or rebates or modifying otherwise applicable copayments or deductibles in return for adherence to programs of health promotion and disease prevention.” The Bush Administration issued regulations implementing the wellness plan exception in 2006, and those regulations were largely codified by the Affordable Care Act (ACA) of 2010. The regulations have always recognized smoking cessation programs as permissible under the wellness plan exception, and the 2013 regulations implementing the ACA changes specifically increased the maximum award/penalty for smoking cessation programs to as much as 50% of the cost of employee-only coverage.
The law permits employers to use the wellness plan exception to reward non-smokers because, as a matter of public policy, lawmakers have decided that employers should be able to impose higher costs on tobacco users because they account for a disproportionate share of overall claims – which in turn leads to higher premiums for all participants in employer-sponsored group health plans. Giving smokers an incentive to quit also advances more than 50 years of anti-smoking public health campaigns. If wellness programs become just an ERISA litigation trap, they will not be used, thus defeating a key congressional policy objective.
[i] See https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/faqs/aca-part-18.
[ii] Note that even though ERISA sections 502(a)(2) and (a)(3) authorize suits by “participants,” the definition of “participant” specifically includes “any employee or former employee of an employer … who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer”. See ERISA sec. 3(7).
[iii] See DOL Technical Release 1992-01, at https://www.dol.gov/agencies/ebsa/employers-and-advisers/guidance/technical-releases/92-01.
