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In 2016, J.D. Vance, now Donald Trump’s running mate, made headlines with the publication of a book titled: “Hillbilly Elegy: A Memoir of a Family and Culture in Crisis.”

In 2016, J.D. Vance, now Donald Trump’s running mate, made headlines with the publication of a book titled: “Hillbilly Elegy: A Memoir of a Family and Culture in Crisis.”

I usually have little interest in reading memoirs, even those written by famous public figures because generally they are self-serving and can’t really be fact-checked. The authors work to put their best feet forward, try to rationalize crises in their lives and get even with enemies.

In addition, at the time, Vance was an unknown venture capitalist -- six years away from being elected a U.S. senator. So why should I bother?

But the brouhaha piqued my curiosity; I wanted to know what all the fanfare and fuss was all about. I wish I had not been so curious.

I found the book, in a word, disgusting. It was patronizing, condescending, mean-spirited, and ugly. Those were its good points.

First, a very brief summary of Vance’s life:

Vance was born in Middletown, Ohio. His mother, who had five husbands, struggled with drug addiction and alcoholism. He was raised by his grandparents, who moved to Middletown from Kentucky’s Appalachia. His childhood, which he describes in detail, was marked by poverty and abuse.

After graduating from Middletown High School in 2003, Vance enlisted in the Marine Corps and did a six-month stint in Iraq in 2005.

He then graduated from Ohio State University with a bachelor of arts degree and worked for a Republican state senator. After graduating, Vance attended Yale Law School on a scholarship. He was an editor of The Yale Law Journal, and graduated in 2013.

Now, back to the book. I understood that the book would win approval from some conservatives -- even though some of them, I thought, would find the book appalling -- but I could not fathom the embrace by liberals.

Basically, the major message is that Appalachians are lazy alcoholics who refuse to help themselves. If anyone is responsible for their poverty, they are.  

His not very subtle implication is that they need to work themselves out of poverty by pulling themselves up by their bootstraps. Forget that they might not even have any boots.

A typical example from the book: “People talk about hard work all the time in places like Middletown. You can walk through a town where 30 percent of the young men work fewer than 20 hours a week and find not a single person aware of his own laziness.”

Or consider the following: “There is a cultural movement in the white working class to blame problems on society or the government, and that movement gains adherents by the day.”

He totally ignores outside forces which caused the poverty such as the rape of Appalachia by behemoth mining companies and other economic/political forces.  

Then there is discussion of his dysfunctional family. He describes in detail how his mother struggled with addition, alcohol and, besides her several marriages, had numerous sexual encounters in the family home.

What kind of man would write that? Why humiliate his mother so publicly? To what purpose? I would be hesitant to write in a book that my mother wasn’t a good cook.

His point seems to be: See what I had to put up with. This is where I came from but look what I have achieved. I noticed in my research that even book reviewers, while mentioning Vance’s mother’s drug addiction and alcohol problems, omitted her sexual history -- I suspect out of respect and finding it unnecessary.

“‘Elegy’ is little more than a list of myths about welfare queens repackaged as a primer on the white working class,” said a New Republic Magazine review at the time. “Vance’s central argument is that hillbillies themselves are to blame for their troubles.”

Neema Avashia, an “Appalachian expat” and writer recently said the following in an essay in The Guardian: “I barely read 30 pages before I saw the book…for what it was: a political platform masquerading as memoir. Before I saw J.D. Vance for what he was: an opportunist. One willing to double down on stereotypes, to paint the people of Appalachia with a culture of poverty brush, rather than be honest about the ways in which both electoral politics and industry have failed the region.”

Avashia continued: “My Appalachian friends and I are tired of being reduced to stereotypes. We are tired of the single-source, corporate-funded narrative that is propagated about us. Appalachia deserves a more complicated narrative, and better representation, that a Trump-Vance presidency offers us.”

Silas House, an Appalachian author and Appalachian Studies chair at Berea College in Kentucky, said in an interview with Politico, that “Hillbilly Elegy” is “not a memoir but a treatise that traffics in ugly stereotypes and tropes, less a way to explain the political rise of Trump than the actual start of the political rise of Vance.”

A.O. Scott, discussing “Hillbilly Elegy”in The New York Times, wrote: “…the idea that members of a marginal or disadvantaged group have caused their own misfortune is music to the ears of those in power.
If those people are just that way — lazy, uncooperative, sexually promiscuous — then any policy designed to help them is useless.”

Nationally, we don’t know much about Vance yet. But as we learn more, we can be confident compassion and empathy are not his strong points.

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Berl Falbaum is a long-time political journalist and author of several books.

In marking our firm’s 25th anniversary, we were provided a special opportunity to look back at some of the important contributions made by our clients who changed the law in a meaningful way. Their cases have been impactful.

JJ Conway
J.J. Conway Law

In marking our firm’s 25th anniversary, we were provided a special opportunity to look back at some of the important contributions made by our clients who changed the law in a meaningful way. Their cases have been impactful. From healthcare for children to pension security, the work of our clients is still making a difference in the lives of others to this day.

As we know, in law, we must always keep looking toward the horizon. And when we do, one of our clients who is working on improving the lives of others is Rachel Cuschieri-Murray.

Rachel has been at the forefront of passing a comprehensive mental health parity bill in Michigan. She and her husband became advocates in the children’s mental health community following a healthcare fight seeking mental health benefits for her son.

Rachel has organized advocacy groups, established a nationwide clearinghouse of information for parents seeking assistance with medical reimbursements, and is now working to bring a comprehensive mental health parity law to Michigan. Rachel’s thinking is ahead of the curve nationally and is needed in our state.

The federal Mental Health Parity and Addiction Equity Act was a bipartisan legislative achievement. The MHPAEA was based on solid public policy reasons and sought to improve upon an aspirational parity law passed earlier that didn’t really do much.

The bill’s two chief sponsors, Paul Wellstone, a Democratic Senator from Minnesota and Pete Domenici, a Republican Senator from New Mexico worked together to secure its passage. It was signed into law by President George W. Bush. Both senators had personal family experiences with mental illness and mental health issues. They wisely recognized that mental illness and addiction is nonpartisan.

So, they crafted a law that sought to destigmatize mental illness and create a kind of “parity,” or equality, in the delivery of healthcare benefits. The law and its regulations targeted such things as artificial treatment limitations, unfair cost-sharing obligations, and other barriers to care like onerous preauthorization requirements.

Following the law’s passage, plans could be required to show that coverage for mental health related issues was no more restrictive than for claims seeking medical or surgical treatments. The law’s scope was again expanded in 2010 under the Patient Protection and Affordable Healthcare Act which was signed into law by President Barack Obama.

While the law was a significant legislative achievement, health law and employee benefit practitioners quickly learned of its limits. For example, there is no private right of action to sue under the MHPAEA. There is no right to a jury trial. This is usually the product of lobbying efforts to water down a law’s strength.

Also, there is no real relief beyond a traditional breach of contract remedy, so there is occasionally a duplicative aspect to mental health parity claims.

Oddly, the MHPAEA works best in a class action setting since entire coverage groups can be scrutinized and the limitations of widely issued policies can be better examined statistically for their impact on mental health coverage.

So it was that Rachel, in recognizing the disparity of care particularly for teens and adolescents in crisis, set about to change the law. She heard the stories from others about difficulties in securing care. She knew that insurers continued to play to stereotypes in this area.

Realizing just how much was at stake (the lives of children with mental health challenges) and how inadequate the state’s regulatory system is — an ineffectual insurance commissioner, a broken external medical review system, Rachel thought bigger. She and a number of advocates began working to create a mental health parity act for Michigan that would mean something. If her vision becomes reality, the disparities of care will be eliminated. The enforcement rights of those with such claims will be enhanced.

This is no small feat, and it is a game changer. Rachel and those working towards the law’s passage almost succeeded last year during the state’s legislative session. News reports indicate that Michigan’s largest insurer set out to stop the legislation, and this last-minute push succeeded in blocking the bill.

To provide some cover, the state passed a duplicate mental health parity act which essentially mirrors the federal law. Passage of a more ambitious law awaits, but with Rachel Murray in the fight, the future looks bright for those who need it most.

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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.

With this column, we announce two more winners (losers) of our distinguished (despicable) Pence Outstanding Hypocrite Award (POHA), bringing the number who have received a POHA to 14.

With this column, we announce two more winners (losers) of our distinguished (despicable) Pence Outstanding Hypocrite Award (POHA), bringing the number who have received a POHA to 14.

We can say without equivocation that none of the previous losers was so deserving of this highly coveted (despised) honor. The latest two winners are the second and third two-time dis-honorees (Senate Minority Leader Mitch McConnell was the first two-time winner).

The second two-time winner of our dis-honor role is Donald Trump’s choice for his running mate, Ohio Senator J.D. Vance. He stands heads-and-shoulders above the rest (OK, not by much; they are all pretty much moral/ethical degenerates whose moral/ethical compass always points south.)  

Here are some of things Vance said about the Republican nominee for president:

--Vance said he was a “never-Trump guy,” adding “I never liked him,” and exclaimed, “My God, what an idiot.”

--“I can’t stomach Donald Trump. I think he’s noxious” and once called him “America’s Hitler.”

--In 2016, Vance described Trump as “a terrible candidate” and a “cynical asshole like Nixon.”

--Trump was “cultural heroin” and his “actual policy proposals, such as they are, range from immoral to absurd.”

--"He (Trump) makes people I care about afraid.  Immigrants, Muslims, etc.”

--He even expressed admiration for President Obama and, in 2016, said he might vote for Hillary Clinton or a third-party candidate.  

--In an article in Atlantic Magazine, headlined, “Opioid of the Masses,” Vance wrote: “In 2016, during this election season, it appears that many Americans have reached for a new pain reliever. It enters minds, not through lungs or veins, but through eyes and ears, and its name is Donald Trump.” Then he added Trump was not the solution.

Vance has deleted all his negative social media posts on Trump.

His plaque in our POHA Hall of Shame will be right next to a previous Trump vice president, Mike Pence, the first plaques visitors will see when entering the inner-sanctum.

Which brings us to our thrid two-time loser, Nikki Haley, a Trump challenger for the GOP nomination in the primaries.

She “won” her first POHA when she dropped out of the race but pledged to vote for Trump, whom she described in the primaries in terms similar to those of Vance.

Then she spoke at the GOP convention, and exclaimed that she is in full support of Trump’s nomination which, she said in the campaign, would be like committing suicide for the country. We can conclude she has a death wish.

“I’ll start by making one thing perfectly clear: Donald Trump has my strong endorsement, period,” she “proudly” told the convention, adding, “For the sake of our nation, we have to go with Donald Trump.”  

Now to some of the things she said about him. They rival some of Vance’s descriptions of the GOP leader.

Trump, she said, at one point, is “unhinged,” “unsafe to be president,” and “unqualified to be president of the United States.”  

After January 6, she criticized Trump, saying, “He let us down.  We shouldn’t have followed him…and we should never have listened to him.”

She also has questioned his mental fitness, after Trump confused her with former House Speaker Nancy Pelosi.

“The concern I have is – I’m not saying anything derogatory,” she said while saying something derogatory, “but when you’re dealing with the pressures of a presidency, you can’t have someone else that we question whether they’re mentally fit to do this.”

Asked whether Trump would abide by the Constitution if elected, she said, “I don’t know, I don’t…I don’t know…I mean you always want to think someone will but I don’t know.”

When Trump mocked Haley’s husband, Michael, who serves in the South Carolina Army National Guard, and was on a year-long deployment in Africa with the 218th Maneuver Enhancement Brigade, Haley said:
“If you don’t respect our military, how should we think you’re going to respect them when it comes to times of war, and prevent war…If you don’t have respect for our military and our veterans, God help us all if that’s the case.

“He showed that with that kind of disrespect for the military, he’s not qualified to be the president of the United States, because I don’t trust him to protect them.”

With her total embrace of Trump, she apparently also doesn’t remember Trump’s racially-charged comments about her heritage.

Trump repeatedly referred to Haley, the daughter of immigrants from India, as “Niambra” and suggested, falsely, that disqualified her to run for president.

Haley was born in Bamberg, South Carolina, as Nimarata Nikki Randhawa.

She always used her middle name and took the surname “Haley” after her marriage in 1996.  In response at the time, Haley said:

“I’ll let people decide what he means by his attacks. What we know is, look, he’s clearly insecure if he goes and does these temper tantrums…”

Here is what she said about politicians who flipped-flopped on Trump (as she and Vance have done):

“Many of the same politicians who now publicly embrace Trump privately dread him. They know what a disaster he’s been and will continue to be for our party. They’re just too afraid to say it out loud. Well, I’m not afraid to say the hard truths out loud. I feel no need to kiss the ring.”  

During a presidential debate in the GOP primaries, she was one of six candidates who raised her hand when asked by the moderator if they would support Trump even if he were a convicted felon.  He has been convicted on 34 felony counts.

Vance and Haley give the word “hypocrisy” and entirely new meaning.

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Berl Falbaum is a longtime political writer and author of several books.

When, if ever, is it permissible for a news reporter to engage in unethical means to obtain a story?

When, if ever, is it permissible for a news reporter to engage in unethical means to obtain a story?

That is the bottom-line question raised by the controversy over one, Lauren Windsor, posing as a Catholica conservative while secretly recording Associate Supreme Court Justice Samuel Alito at a gala recently sponsored by the Supreme Court Historical Society.

Windsor’s recording made headlines when she “caught” Alito, after being goaded by her, agreeing that the country needs to return to a “place of godliness.”

For this column, we’ll put aside the question whether that comment deserved the massive coverage it received because it lacks any context.

We really have no idea what Alito meant.  We’ll also skip the legality of the taping because that issue is very complex with various states dealing with it differently nor are we addressing Alito’s alleged unethical conduct in accepting gifts or his political conflicts of interest given his wife’s “political” activism.  We are only examining the issue of ethics in journalism.

The answer to the question posed at the top of this column is a resounding “no.”  I can’t be any stronger.  It is never permissible for reporters to misrepresent themselves or to record and/or photograph people without their permission. End of story.

I’ll skip the comments from those who agree with my position and just focus on those that defend Windsor, who is described as a “documentarian.” We’ll begin with the Code of Ethics of the Society of Professional Journalists (SPJ).

It stipulates that news people “should avoid undercover or other surreptitious methods of gathering information unless traditional, open methods will not yield information vital to the public.”

I taught journalism ethics at Wayne State University for decades and always marveled at that “ethical” edict. I still can’t believe someone really wrote that and it’s been on the books for years. In effect, it says it’s wrong to steal unless you can’t get the money you need any other way.

Who decides what’s “vital to the public”?  A documentarian seeking publicity?  A publisher losing subscriptions?  A reporter pressing his editors for a raise or promotion?

Parker Molloy, in her newsletter The Present Age, summaries the Windsor defense cited by many, writing, “Ultimately, the public interest should be the guiding principles in journalism.  Regardless of how they are obtained, Lauren Windsor’s recordings shed light on the beliefs of a Supreme Court justice -- information that the public has a right to know.”

Regardless of how the information was obtained?  Would Molloy support Windsor breaking into Alito’s office and rummaging through his files?  Would she approve of wiretapping the justice’s office?  If not, what is the difference with wiretapping his office and secretly recording him at the dinner?

Indeed, two local reporters, in a book on investigative reporting published in the 1970s, recommended bugging the offices of public officials, of course, to serve the public interest.

I still remember their suggestion of dropping a small mic that looks like a cockroach on the rug while the reporter is in the mayor’s office.  I think that meets the SPJ code.

What are the limits -- are there any -- for Molloy, Windsor and the others who defend misrepresentation and secret recordings?

As a society, we don’t even permit law enforcement agencies to wiretap without having probable cause or approval from a court.

I think it would be more in the public interest to rid us of organized crime figures, murderers, rapists, arsonists, etc.  with secret recordings than garner a one-sentence quote from a Supreme court justice. Yet, we forbid it because of a commitment to protecting civil liberties, privacy and possible abuse.

Moreover, government agencies can be held accountable for unethical practices such as wiretapping while Windsor escapes any accountability as do all those who published her “exclusive.” They too compromised journalistic ethics and gave her the publicity she craved.

It is also vital to understand the First Amendment (freedom of the press) is not restricted to The New York Times, Wall Street Journal, The Washington Post, CNN, NBC or other major media outlets.  It even protects someone who publishes a small newsletter in a residential subdivision.

Thus, under Windsor’s warped understanding of media ethics, in effect, anyone can wiretap public officials if they consider it in the public interest.

Other important factors to note:

--Windsor has not made the full recording public. Might there be something on it that gives us more information, that puts the conversation in context? Some skepticism is warranted given that Windsor already has engaged in unethical conduct.

--She admits she lied but “for the greater good.” I guess we should all feel indebted to her.  

--Alito did not actually say the country needs to return to a “place of godliness.” Windsor said it and he responded, “I agree with you.”  Might he just have been courteous?

--Another fair question: Is it really about the public interest or increasing traffic and the number of likes on websites?

Sadly, the media continues to lose the trust of the public which questions their accuracy, fairness and commitment to unbiased reporting.

Poll after poll reveals a growing lack of respect which is hardly healthy for a democracy that needs a vibrant press dedicated to the highest principles of truth and honesty.

Surreptitious and underhanded behavior on the part of the media does not help in restoring public confidence in the press. Defending unsavory behavior only adds to the public’s distrust.

Given this brouhaha, consider how Windsor and her defenders might instruct their children on ethics: Never lie or cheat unless you cannot get what you want any other way.

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Berl Falbaum is a longtime political writer and author of several books.

We seem to live in a world where many have forgotten the importance of civility in business, politics and the law.

Charles A. Lawler
Clark Hill

Unfortunately, civility is hard to codify or legislate, but you know it when you see it.  It’s possible to disagree without being disagreeable.
 Sandra Day O’Conner

Politeness and civility are the best capital ever invested in business.  
P.T. Barnum

We seem to live in a world where many have forgotten the importance of civility in business, politics and the law.  Merriam Webster defines civility as a; civilized conduct, especially courtesy and politeness, and b; a polite act or expression.  Is this really that hard?  Is this something that we, as advocates of the law, should try to practice daily?  I would assert that we all should consciously try to be more civil in our daily practice and in our daily lives. We all can make the world a better place through daily conscious acts of trying to be more civil.  We can make the world a better place one activity at a time.

Bryan Cave Leighton Paisner’s Irvine, California office adopted a Code of Civility for its office.  The Code is below in bold with my comments on each portion:

We greet and acknowledge each other.

This is simple act of kindness which requires little effort on our parts.  Think of the many times that a simple hello and acknowledgement has brightened up our day.  It costs nothing to say hello and it might help someone you encounter to have a better day.  Especially when many are returning to their offices, the opportunity to meet and greet each other will warm the souls of many.

We say please and thank you.

Our parents and other influencers in our lives have taught us this simple act of kindness.  Think of how many times someone has said thank you to you and what it has meant to you. The use of please and thank you drives us to continue to help others and serve society.  I would suggest we consider taking this one step further and say, “you’re welcome.”  Positive social interaction is good for our mental wellbeing.

We treat each other equally and with respect, no matter the conditions.

This one might require some more effort.  This just requires us to take a step back and be respectful.  The individual we are interacting with deserves this type of treatment.  Furthermore, if the conditions are difficult a respectful ethical approach to the individual has a greater chance of moving the interaction to a positive result. We can control how we interact with others. “A drop of honey is worth a gallon of vinegar,” Dale Carnegie.

We acknowledge the impact of our behavior of others.

This is one that I personally struggled with for years.  My wife, Karen, has helped me become more aware of my body language and behavior’s impact on others.  Watch the visual cues you are getting.  It is easy to see if your behavior has had a negative impact on someone and take the time to correct.  Please keep in mind how is the message I am delivering going to be taken.  There is more than one way to accomplish your goals. Maybe we should consider actions that will not be taken in a negative way.

We welcome feedback from each other.

This is important to understand how our actions are being perceived by others.  Ask your co-workers how they interpret what you discussed.  Enable your coworkers to be willing to share their feedback with you.  Feedback from individuals in your inner circle will help you achieve your goals.  Those who love and respect you will help you achieve your goals and point out situations where your actions weren’t received as intended.  We all need to constantly strive to be a better person today than we were yesterday.

We are approachable.

The door is always open. The key is do you really mean it.  We, as part of the legal profession, have been given or earned great opportunities.  With opportunity comes obligations.  As I have stated many times, I believe those in our profession have an obligation to help others.  You never know when you are going to have the chance to make a difference in someone’s life.  Leave that door open and welcome the opportunity to help others.

We are direct, sensitive and honest.

Honest, open and empathic conversations will garner the best results.  I enjoy conversations with my partners, because they always tell me what they think and are completely honest.  They tell me when I might be off base, whether in my professional or personal life, and challenge me to reflect.  I appreciate and welcome these conversations.  These conversations are good for all of us.

We acknowledge the contributions of others.

Good leaders continually praise others.  Generals don’t win wars, it is those in the trenches.  I know that my legal career would have never been as successful as it has been without my long-time assistant Kinneitha Thomas.  Without her I would not have become a member, had the number of clients I have or become member-in-charge of Clark Hill’s Lansing office.  Furthermore, we should acknowledge others because it is simply the right thing to do.

We respect other’s time commitments.

We, as attorneys, should easily understand this one.  That said, everybody’s time is valuable.  When opening discussions or starting telephone conversations, maybe our first comment should be, “is this a good time?”.  Everybody’s time is important to them let’s all try to keep that in mind when going through our busy days.

We address incivility.

This one might be the most difficult but might be as important as any of the above to develop the culture we want in our offices and work environment.  We should take the opportunities that we encounter to encourage others to treat each other with respect, kindness, dignity and civility.  At times the individuals who we choose to address regarding incivility probably aren’t even aware of how their actions are being perceived.  Let’s all try to be more assertive with regard to situations we encounter where incivility persists.

I truly believe that all of us in the legal field are uniquely situated to lead our country to a better place.  All the division and the pandemic have led to some people beginning to judge and lash out against others.  Let’s all try to make a conscious decision to be more civil in how we treat everyone in our life.  Let’s all try to make the world a better place one interaction at a time.  It is a pleasure to have had the opportunity to work in the legal environment.  It has changed my life and I hope that I am able to make the world a better place for others.

As Nike says, “Let’s just do it.”

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Charles A. Lawler is a member of Clark Hill in Lansing.

Years ago, I had an unexpected meeting with a gentleman who worked high up in the benefits department of an automotive manufacturer before ERISA’s enactment.

Years ago, I had an unexpected meeting with a gentleman who worked high up in the benefits department of an automotive manufacturer before ERISA’s enactment. He had an encyclopedic knowledge about the run up to the law’s passage in 1974 and the opposition the law faced. Almost every interest group was against ERISA – the automakers, the unions, most private companies, and even state and local governments. Its passage is something of a legislative miracle. What I remember most about our conversation was his response when I asked him what happened after ERISA passed. He said his company set the lawyers loose to shape the law the way they wanted it interpreted.

Perhaps, it’s not surprising then that ERISA can be a tough law for the very people it was meant to protect. Federal courts routinely cited “policy reasons” for restraint in construing the law’s protections. Courts took the view that employees should be thankful for the benefits they had since ERISA did not actually mandate the providing of any benefits. (ERISA only imposed standards on plans once they offered benefits to employees). To compound matters, the federal courts crafted difficult legal burdens to overturn discretionary decisions by an employee benefit plan. Nowhere were the judicial obstacles more pronounced than in the area of disability income replacement benefits.

Looking back on it now, it is interesting that two cases involving two hardworking and successful employees were able to push past these obstacles and improve the lives of many others trying to secure disability insurance benefits. I had the good fortune to work with these two remarkable women and witness firsthand their resolve in fighting against difficult odds.

The first case involved the claims of Sherry DeLisle, the chief financial officer of a luxury jeweler. Sherry had been seriously injured in an automobile accident that left her occupationally disabled. Despite her physical limitations and concentration difficulties, Sherry was trying to push through her pain and cognitive issues. Her work was complex, and she was having trouble keeping up. She was ultimately fired for non-performance of her job.

Sherry filed a claim for disability benefits and asserted that she was functionally disabled while still working. She argued that her diminished performance was evidence of her disability after years of accolades, bonuses, pay increases, and promotions. Her benefit plan’s insurer denied the claim.

The insurer claimed Sherry had no coverage since she had been terminated by her employer. The case went to full briefing in a federal district court. Sherry won. But the court allowed the insurer to reprocess the claim and decide whether Sherry was, in fact, occupationally disabled, despite her being off work and later being deemed disabled by the Social Security Administration.

Reviewing her claim a second time, the insurer now claimed that Sherry was “not disabled” based on the file reviews of several physicians working for the insurer or under contract with the insurer. Sherry countered with multiple treating physicians, considerable objective evidence showing extensive hardware and spinal repair, cognitive tests, and affidavits. Again, the insurer upheld the denial. Sherry went back to federal court and challenged her disability insurer’s claims practices. Sherry’s case spanned more than seven years before two different trial court judges and the U.S. Court of Appeals for the Sixth Circuit and a full en banc briefing.

When it was over, Sherry’s case established the “evaluation of factors” analysis in ERISA long-term disability cases. DeLisle v. Sun Life Assurance Company of Canada, 558 F.3d 440 (6th Cir. 2009). This was a key development because it established a framework for analyzing these types of claims. A reviewing court would now look at different evidentiary factors and decide whether a participant was entitled to benefits or whether an insurer abused its discretionary decision-making authority. It also helped make sense of the Supreme Court’s ruling in MetLife v. Glenn, 554 U.S. 105 (2008), a case that originated in the Sixth Circuit. See also “Refining Wilkins: A 20-Year Look at the Factors Used in the Sixth Circuit’s Resolution of Disability Claims Under ERISA,” 34 W. Mich. U. Cooley L. Rev. 2018.

Years later, the Sixth Circuit decided Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879 (6th Cir. 2020). Cheryl Wallace, a decades-long nurse and medical volunteer, contracted a serious infectious disease while traveling abroad. Cheryl became seriously ill and was unable to return to work. Her employee plan denied her claim, arguing that she did not exhaust her pre-suit remedies.

A “failure to exhaust” defense was reflexively asserted in nearly every ERISA claim, and its application was uneven at best. Some cases would be dismissed with prejudice for a failure to exhaust. Other cases would be sent back to the plan by the court to allow a participant to exhaust their remedies. The exhaustion doctrine was commonly used as a technical defense to sink an otherwise valid claim by missing a step in the pre-litigation process.

Cheryl challenged the exhaustion doctrine in federal court. She argued that if an insurance company was going to insist that a plan participant exhaust their remedies, it had to write that requirement into its contract. Otherwise, there was nothing to require Cheryl — or any other plan member — to take this step. Interestingly, in the nearly fifty years since ERISA had been around, this issue had not been decided at the appellate level.

Cheryl prevailed with the U.S. Court of Appeals for the Sixth Circuit finding that if a benefit plan did not require exhaustion of remedies, it was no longer required. The reasoning in her case was adopted by the Eighth Circuit Court of Appeals, and there has not been a decision holding otherwise to date.

Neither Sherry DeLisle nor Cheryl Wallace set out to change the law. Rather, they both had a contractual dispute in need of a resolution. Both were provided opportunities to resolve their claims by pursuing early settlements. Somewhere along the way something changed. Their cases stopped being about their own individual claims. They took a broader view, despite the financial hardship. The idea of helping others became more appealing and entered into their approach to litigation.

There are risks to this approach. There are also rewards. And when the decision to go big ends up changing the way things are done, there is a kind of magic that happens. And it is something to behold when a client can experience it, just like Sherry DeLisle and Cheryl Wallace did.

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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.