This holiday season has brought hope that the recovery rights of self-funded ERISA plans will be evaluated in the light of reality, rather than by operation of “magic” language. In Iron Workers v. Dinnigan, (S.D.N.Y. Nov. 21, 2012), 2012 WL 5877426, the court, citing U.S. Airways v. McCutchen, 663 F.3d 671 (3d Cir.2011), chose to apply the “common fund” doctrine and reduced the self-funded ERISA plans recovery to 75 percent.
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