Ninth Circuit Effects Sea Change In ERISA Discretionary Review

Law360, New York (December 6, 2006, 12:00 AM EST) -- The Ninth Circuit recently issued its long-awaited en banc decision in Abatie v. Alta Health (2006 WL 2347660), which is likely to have a significant impact on all ERISA litigation in this circuit.

Contrary to the hopes of the plaintiffs’ bar, the Court did not eliminate discretionary review. It did, however, effect a sea change in ERISA discretionary review in the Ninth Circuit. Most notably, the decision eliminates the "serious conflict of interest" test established by Atwood v. Newmont, 45 F.3d 1317 (9th Cir. 1995)....
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