Michael H. Bernstein


  • Overview


    Michael Bernstein concentrates his practice in the areas of the Employee Retirement Income Security Act (ERISA) and managed care litigation; life, health, and disability benefit litigation; and related insurance coverage issues. He is a member of the firm’s Business Litigation Group and its Health and Benefits Litigation Team.

    Health and Benefits Litigation

    Mr. Bernstein manages litigation from inception through trial, arbitration, and appeal and has successfully defended life, health, and disability claims brought in state or federal court against insurers, plan administrators, employers, and managed care organizations. Examples include cases governed by ERISA, the Federal Employees Health Benefits Act (FEHBA), and the Federal Employees' Group Life Insurance (FEGLI) program. He regularly represents health maintenance organizations (HMOs); preferred provider organizations (PPOs); third-party administrators (TPAs); pharmacy benefit managers (PBMs); and life, health, disability, and accidental death and dismemberment (AD&D) benefit plans. In addition, Mr. Bernstein represents insurance companies, managed behavioral health care claim administrators, chiropractic health care claim administrators, self-funded plan sponsors, and administrators in a variety of matters.

    Mr. Bernstein’s experience spans all areas of life, health, and disability litigation, including complex health care issues involving ERISA, FEHBA and Medicare preemption, payor/provider contract disputes, provider de-listing disputes, PBM antitrust claims, nonparticipating provider reimbursement claims, pharmacy benefit plan/provider disputes, and behavioral health claim disputes, including claims alleging violations of federal and state Mental Health Parity and Addiction Equity laws. He has also represented claim administrators and plan sponsors in class actions alleging breaches of ERISA fiduciary duty, violations of mental health parity laws, improper offsets against benefits for Social Security disability income benefits, and third-party tort settlements. Mr. Bernstein has also briefed and argued approximately 30 appeals in various U.S. Circuit Courts as well as before state appellate tribunals.

    Mr. Bernstein has written extensively about managed care litigation, health care issues, group benefits, and ERISA matters, and he has presented on these topics at conferences and seminars around the country.   

    Prior to joining Robinson+Cole, Mr. Bernstein was the chair of the health care practice group for an international law firm.  

  • Experience
    • Experience


      • Ingravallo v. Hartford Life and Accident Insurance Company, as Administrator of the Delta Airlines Inc. Long-Term Disability Group Policy, 563 F. App’x 796 (2d Cir. 2014) — Obtained a favorable appellate ruling in the U.S. Court of Appeals for the Second Circuit reversing judgment for the plaintiff and entering judgment in favor of the defendant on the grounds that the District Court erred by finding that the defendant, the insurer/administrator of an ERISA regulated long-term disability benefit plan, acted arbitrarily and capriciously in denying plaintiff's claim for continuing disability benefits related to her multiple sclerosis diagnosis because her condition had improved and she no longer met the ERISA plan's definition of disabled. *

      • Roganti v. Metro. Life Ins. Co., 786 F.3d 201 (2d Cir. 2015) — Plaintiff was an executive with the defendant until he resigned in the face of pay reductions that he claims were levied in retaliation for his opposition to unethical business practices. He commenced a FINRA arbitration defendant seeking wages that he would have been paid but for alleged retaliatory pay reductions, as well as compensation for the decreased value of his pension, which was tied to his wages. After the arbitral panel awarded plaintiff approximately $2.49 million in "compensatory damages," the plaintiff filed a benefits claim, arguing that the award represented back pay and that his pension benefits should be adjusted upward as if he had earned the money while he was still employed. Defendant denied the claim because the arbitral award was not characterized as back pay. After a bench trial, the district court ruled that defendant's denial of benefits was arbitrary and capricious and awarded plaintiff over $800,000. On appeal, the Second Circuit reversed, concluding that defendant's denial of Roganti’s claim was not arbitrary and capricious and that it was entitled to judgment vacating the district court's award and dismissing the action with prejudice. *

      • Carol D. Faber v. Metropolitan Life Insurance Co., 648 F.3d 98 (2d Cir. 2011) — Obtained an affirmance from the U.S. Court of Appeals for the Second Circuit of the district court's order dismissing a putative class action against our client, which alleged that it had breached its fiduciary duties under ERISA by paying life insurance benefits through establishing and funding a retained asset and issuing beneficiaries checkbooks to access the fully funded account instead of issuing a lump sum settlement check. The Secretary of Labor filed a brief in which it essentially agreed with the defendant's argument that it had discharged its ERISA fiduciary duties once the beneficiaries' checkbook accounts were established. *

      • Patricia Burke v. PriceWaterhouseCoopers LLP Long Term Disability Plan and The Hartford Life and Accident Insurance Company, 572 F.3d 76 (2d Cir. 2009) — Addressing an issue of first impression for the circuit, the U.S. Circuit Court of Appeals for the Second Circuit affirmed the district court's ruling, upholding the explicit terms of a benefits plan's limitations period even though they required that the limitations period begin to run before the claimant could file a civil action under ERISA § 502(a)(1)(B). The Second Circuit ruled that the Department of Labor regulations allow ample time for plan participants to challenge an adverse decision and that the plan's terms must be enforced as written unless doing so prevented claimants from filing a timely lawsuit. This case was the basis for Heimeshoff v. Hartford Life Ins. Co., in which the U.S. Supreme Court held that ERISA plan limitation of actions provisions must be enforced as written, even if they begin the limitations period before the claimant can file a lawsuit to challenge the denial of a benefit claim. *

      • Thurber v. Aetna Life Insurance Company, 712 F.3d 654 (2d Cir. 2013) cert. denied 1345 Sup. Ct. 2723 (2014) — Obtained a favorable appellate ruling on two issues of first impression in the Second Circuit Court of Appeals in an ERISA-governed long-term disability claim for a benefits action on behalf of our client, a major insurer. In affirming the district court's grant of summary judgment to the insurer and reversing the district court on its denial of the insurer's counterclaim for return of overpaid plan benefits, the Second Circuit split with other circuits and made two precedential rulings favorable to ERISA plans. First, the Second Circuit ruled that the ERISA plan documents control as to whether the plan vests discretionary authority with a claim administrator, and ERISA does not require that the participant receive notice for the arbitrary and capricious standard of review to be applied by courts. Second, the Second Circuit ruled that recovery of overpayments of benefits caused by a plan participant's simultaneous receipt of "other income" benefits created an equitable lien by agreement, which permitted the insurer to seek return of the overpaid benefits under ERISA § 502(a)(3), even though the participant had dissipated the funds. In doing so, the Second Circuit reversed the district court's denial of the insurer's counterclaim under ERISA § 502(a)(3) to recover overpayment of short-term disability benefits. *

      • Cicio v. Does, 385 F.3d 156 (2d Cir. 2004), on remand from U.S. Supreme Court (see Vytra Healthcare v. Cicio, 542 U.S. 933 (2004)) vacating Cicio v. Does, 321 F.3d 83 (2d Cir. 2003) and affirming Cicio v. Vytra Healthcare, 208 F. Supp. 2d 288 (E.D.N.Y 2001) — Plaintiff, on behalf of herself and her late husband's estate, brought a state court suit against an employee benefits plan administrator and others, asserting state law medical malpractice claims. Defendants removed action to federal court. The United States District Court for the Eastern District of New York denied plaintiff's motion to remand and dismissed action on ground that it was preempted by ERISA. Plaintiff appealed. Following partial affirmance, 321 F.3d 83, and remand, 542 U.S. 933, 124 S. Ct. 2902, 159 L.Ed.2d 808, the Court of Appeals held that claims were preempted by ERISA, affirming the District Court's ruling. This case was a companion case to Aetna Health Inc. v. Davila, in which the U.S. Supreme Court set forth a bright-line test for complete ERISA preemption. *

      • Obtained affirmance in the Second Circuit of a district court order granting summary judgment dismissing plaintiff's state law action alleging that she was entitled to $440,000 regarding her deceased husband's failure to convert his ERISA-based life insurance coverage to an individual life insurance policy on the grounds that the claim was completely preempted by ERISA. *

      • Obtained summary judgment for our clients, a self-funded medical plan for a major corporation and its claims administrator, in this ERISA matter in Florida federal court in which plaintiff alleged that the plan wrongfully denied her claim for behavioral health benefits. *

      • Obtained a summary judgment dismissing  plaintiff's New York state law breach of contract cause of action alleging that his disability benefit insurer wrongfully reduced his long-term disability benefits by amounts he received in a third-party tort action settlement on the grounds that the claims were preempted by ERISA. *

      • Obtained a summary judgment dismissing plaintiff's complaint seeking an award of long-term disability benefits under an ERISA-regulated benefit plan on the grounds that the insurer's adverse benefit determination, which was based on its review and also the opinions of three independent medical record peer review physicians, was reasonable, based on substantial evidence and not arbitrary and capricious. *

      • Obtained summary judgment for our client, a health insurance company, dismissing a claim for benefits under an ERISA-regulated health benefit plan seeking coverage for growth hormone replacement therapy (GHRT) for an adolescent on the grounds that the requested treatment was not medically necessary. * 

      • Obtained a dismissal with prejudice of a putative national class action on behalf of our client, a health plan, in a claim of wrongfully denied mental health care benefits filed in federal court. Plaintiff alleged that our client systematically and wrongfully denied in-patient mental health care benefits to plan beneficiaries who suffered from eating disorders. *

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      * Atty. Bernstein was counsel in these representative matters before joining Robinson+Cole.

    • Professional Associations

      Professional Associations

      American Bar Foundation

      International Association of Defense Counsel

      American Bar Association
      Health Law Section

      New York State Bar Association
      Torts, Insurance and Compensation Law Section

      Defense Research Institute
      Life, Health and Disability Committee - Healthcare Programming former chair
      Medical Liability and Health Care Law Committee

      American Health Lawyers Association
    • Honors + Awards

      Honors + Awards

      Selected to the New York Metro Super Lawyers list for 2006, 2007, 2010 and from 2012 to 2017.

    • Publications


      Managed Care Litigation, Editor in Chief, Second Edition, published by Bloomberg BNA and the ABA's Health Law Section (2017 Cumulative Supplement)

      "Second Circuit," published in ERISA Survey of Federal Circuits, Chapter 2 of this ABA publication (2012 – 2016 editions)

      "Health Law Update," paper prepared for presentation at DRI's 2014 Life, Health, Disability & ERISA Claims Conference in Chicago (5/2/2014)

      "State Law Challenges in Managed Care," published in Managed Care Litigation, Chapter 4, published by Bloomberg BNA and the ABA Health Law Section (September 2013)

      "Effective Use of Analogies in Legal Practice," published in For the Defense, co-authored with John T. Seybert (September 2012)

      "Health Care Reform, One Year Later," paper prepared for presentation at DRI's 2011 Life, Health, Disability & ERISA Claims Seminar in Boston (4/28/2011)

      "Comparative Preemption in Health Care — Is Any Area Left Unoccupied?" co-authored with Elizabeth R. Chesler, paper prepared for presentation at DRI’s 2010 Life, Health, Disability & ERISA Claims Seminar (4/28/2010)

      "Hobson v. MetLife," published in Life, Health & Disability E-News Flash, a DRI publication (August 2009)

      "Second Circuit," published in Misrepresentation in the Life, Health and Disability Insurance Application Process: A National Survey, co-authored with John T. Seybert, published by ABA's Tort Trial & Insurance Practice Section (June 2009)

      "ERISA Discretionary Review in the Wake of MetLife v. Glenn," published in Payors Plans & Managed Care, co-authored with John T. Seybert, an AHLA publication (January 2009)

      "Everyone Pays the Price When Healthcare Providers Waive Patients' Co-Insurance Obligations," published in The Health Lawyer, co-authored with John T. Seybert, an ABA publication (December 2008)

      "State and Local Employer Healthcare Mandates: Preempted by ERISA?" co-authored with John T. Seybert, published by the Defense Research Institute in Life Health and Disability News. (Winter 2008)

      "Is There Any Uniformity? ERISA’s Standard of Review for Structurally Conflicted Administrators," co-authored with John T. Seybert, published in DRI’s In-House Defense Quarterly (Spring 2008)

      "RICO and Insurers," co-authored with Jeffrey M. Winn, published in New Jersey Law Journal (October 2007)

      "Recent Trends in ERISA Preemption Affecting the Managed Care Industry," published in Insights (October 2007)

      "Eighth Circuit Decision Reversing Plan’s Retroactive Rescission Provides a ‘Trifecta’ of ERISA Rulings," published in The Voice, by the Defense Research Institute (July 2007)

      "You Can’t Get There From Here — ERISA Preemption of State Laws Mandating Employer Healthcare Contributions," published in ABA Health eSource, co-authored with John T. Seybert (March 2007)

    • Presentations


      "Physicians vs. Health Plans," at DRI Life, Health, Disability & ERISA Conference, Chicago, IL (April 26-28, 2017)

      "Medical Provider Claims Assignment, Standing and Penalties," at American Conference Institute’s 14th National Form on ERISA Litigation, Chicago, IL (March 1-2, 2017)

      "The Fiduciary Exception to the Attorney-Client Privilege and Other Ethical Considerations," at American Conference Institute’s 11th National Forum on ERISA Litigation, Chicago, IL (March 2, 2016)

      "Medical Provider Claims Assignment, Standing and Penalties," at American Conference Institute’s 11th National Forum on ERISA Litigation, Chicago, IL (March 2, 2016)

    • News

      R+C News Releases

      • October 17, 2017

        Robinson+Cole Lawyers Recognized by Super Lawyers®

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