FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID WIT; NATASHA WIT; 

BRIAN MUIR; BRANDT PFEIFER, 

on behalf of the Estate of his deceased 

wife, Lauralee Pfeifer; LORI 

FLANZRAICH, on behalf of her 

daughter Casey Flanzraich; CECILIA 

HOLDNAK, on behalf of herself, her 

daughter Emily Holdnak; GARY 

ALEXANDER, on his own behalf and 

on behalf of his beneficiary son, 

Jordan Alexander; CORINNA 

KLEIN; DAVID HAFFNER, on 

behalf of themselves and all others 

similarly situated, 

Plaintiffs-Appellees, 

LINDA TILLITT; MARY JONES, 

Intervenor-PlaintiffsAppellees, 

 v. 

UNITED BEHAVIORAL HEALTH, 

Defendant-Appellant.

Nos. 20-17363 

21-15193 

D.C. No. 3:14-

cv-02346-JCS 

ORDER AND 

OPINION
2 WIT V. UNITED BEHAVIORAL HEALTH

GARY ALEXANDER, on his own 

behalf and on behalf of his beneficiary 

son, Jordan Alexander; CORINNA 

KLEIN; DAVID HAFFNER, on 

behalf of themselves and all others 

similarly situated, 

Plaintiffs-Appellees, 

MICHAEL DRISCOLL, 

Intervenor-PlaintiffAppellee, 

 v. 

UNITED BEHAVIORAL HEALTH, 

Defendant-Appellant.

Nos. 20-17364 

21-15194

D.C. No. 3:14-

cv-05337-JCS 

Appeal from the United States District Court

for the Northern District of California

Joseph C. Spero, Magistrate Judge, Presiding

Argued and Submitted August 11, 2021

San Francisco, California

Filed August 22, 2023
WIT V. UNITED BEHAVIORAL HEALTH 3 

Before: Morgan Christen and Danielle J. Forrest, Circuit 

Judges, and Michael M. Anello,* District Judge.

Order;

Opinion by Judge Anello 

SUMMARY**

Employee Retirement Income Security Act

The panel filed (1) an order vacating a prior opinion, 

replacing it with a new opinion, granting a petition for panel 

rehearing, and denying as moot a petition for rehearing en 

banc; and (2) an opinion affirming in part and reversing in 

part the district court’s judgment, after a bench trial, finding 

United Behavioral Health (“UBH”) liable under ERISA for 

breach of fiduciary duties and wrongful denial of benefits, 

and awarding declaratory and injunctive relief, to three 

classes of plaintiffs who were beneficiaries of ERISAgoverned health benefit plans for which UBH was the claims 

administrator.

The panel held that plaintiffs had Article III standing to 

bring their claims. Plaintiffs sufficiently alleged a concrete 

injury as to their fiduciary duty claim because UBH’s 

alleged violation presented a material risk of harm to 

plaintiffs’ interest in their contractual benefits. Plaintiffs 

* The Honorable Michael M. Anello, United States District Judge for the 

Southern District of California, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
4 WIT V. UNITED BEHAVIORAL HEALTH

also alleged a concrete injury as to the denial of benefits 

claim. Further, plaintiffs alleged a particularized injury as to

both claims because UBH’s Level of Care Guidelines and 

Coverage Determination Guidelines for making medical 

necessity or coverage determinations materially affected 

each plaintiff. And plaintiffs’ alleged injuries were “fairly 

traceable” to UBH’s conduct.

The panel held that the district court did not err in 

certifying the three classes to pursue the fiduciary duty 

claim, but the panel reversed the district court’s certification 

of the denial of benefits classes. The panel held that, by 

certifying the denial of benefits classes without limiting the 

classes to those with claims that UBH denied under a 

specific Guidelines provision or provisions challenged in 

this litigation that applied to the claimant’s own request for 

benefits, the certification order improperly enlarged or 

modified plaintiffs’ substantive rights in violation of the 

Rules Enabling Act.

The panel held that, on the merits, the district court erred 

to the extent it determined that the ERISA plans required the 

Guidelines to be coextensive with generally accepted 

standards of care. The panel therefore reversed the judgment 

on plaintiffs’ denial of benefits claim. To the extent the 

judgment on plaintiffs’ breach of fiduciary duty claim was 

based on the district court’s erroneous interpretation of the 

ERISA plans, it was also reversed.

The panel remanded for the district court to answer the 

threshold question of whether the fiduciary duty claim was 

subject to the plans’ administrative exhaustion requirement 

and, if so, whether the requirement was satisfied by unnamed 

class members or should otherwise be excused.
WIT V. UNITED BEHAVIORAL HEALTH 5

COUNSEL

Miguel A. Estrada (argued), Geoffrey M. Sigler, Lucas C. 

Townsend, and Matthew S. Rozen, Gibson Dunn & Crutcher 

LLP, Washington, D.C.; Jennifer S. Romano and Andrew 

Holmer, Crowell & Moring LLP, Los Angeles, California; 

April N. Ross, Crowell & Moring LLP, Washington, D.C.; 

Nathaniel P. Bualat, Crowell & Moring LLP, San Francisco, 

California; for Defendant-Appellant.

Caroline E. Reynolds (argued), David A. Reiser, and 

Andrew N. Goldfarb, Zuckerman Spaeder LLP, 

Washington, D.C.; D. Brian Hufford and Jason S. Cowart, 

Zuckerman Spaeder LLP, New York, New York; Adam 

Abelson, Zuckerman Spaeder LLP, Baltimore, Maryland; 

Meiram Bendat, Meiram Bendat, Santa Barbara, California; 

John R. Stokes and Peter K. Stris, Stris & Maher LLP, Los 

Angeles, California; Colleen R. Smith, Stris & Maher LLP, 

Washington, D.C.; for Plaintiffs-Appellees.

Mark D. DeBofsky, DeBofsky Sherman Casciari Reynolds 

PC, Chicago, Illinois, for Amici Curiae National Association 

for Behavioral Healthcare, American Hospital Association, 

American Association for Treatment of Opioid Dependence, 

American Psychological Association, California Hospital 

Association, Federation of American Hospitals, National 

Association of Addiction Treatment Providers, National 

Council for Mental Wellbeing, and REDC Consortium

Jack R. Bierig, Alison L. Andersen, Neil Lloyd, and Wendy 

Qiu, Arentfox Schiff LLP, Chicago, Illinois, for Amici 

Curiae American Psychiatric Association, American 

Medical Association, California Medical Association, and 

American Psychiatric Association California District 

Branches. 
6 WIT V. UNITED BEHAVIORAL HEALTH

Abigail K. Coursolle and Elizabeth Edwards, National 

Health Law Program, Los Angeles, California; Kevin 

Costello, Center for Health Law & Policy Innovation, 

Harvard Law School, Cambridge, Massachusetts; for Amici 

Curiae National Health Law Program et. al.. 

Aaron M. Panner and Eric J. Maier, Kellogg Hansen Todd 

Figel & Frederick PLLC, Washington, D.C.; for Amici 

Curiae American Psychiatric Association, American 

Medical Association, California Medical Association, and 

California State Association of Psychiatrists. 

Joshua B. Simon, Warren Haskel, and Richard Diggs, 

McDermott Will & Emery LLP, New York, New York; 

Michael B. Kimberly and Sarah P. Hogarth, McDermott 

Will & Emery LLP, Washington, D.C.; for Amicus Curiae 

America’s Health Insurance Plans. 

Daryl Joseffer and Jennifer B. Dickey, United States 

Chamber Litigation Center Inc., Washington, D.C.; Andrew 

J. Pincus, Archis A. Parasharami, and Daniel E. Jones, 

Mayer Brown LLP, Washington, D.C.; Avi M. Kupfer, 

Mayer Brown LLP, Chicago, Illinois; for Amicus Curiae 

The Chamber of Commerce of the United States of America. 

Joanna S. McCallum, Manatt Phelps & Phillips LLP, Los 

Angeles, California; Joseph E. Laska and Nathaniel A. 

Cohen, Manatt Phelps & Phillips LLP, San Francisco, 

California; for Amicus Curiae Association for Behavior 

Health and Wellness.

Elena Goldstein, Acting Solicitor of Labor; G. William 

Scott, Associate Solicitor for Plan Benefit Security; Jeffrey 

Hahn, Counsel for Litigation, Melissa Moore and Stephen 

Silverman, Senior Attorneys; United States Department of 

Labor, Office of the Solicitor, Plan Benefits Security 
WIT V. UNITED BEHAVIORAL HEALTH 7

Division, Washington, D.C.; for Amicus Curiae Secretary of 

Labor.

Alyssa C. George and Sejal Singh, Trial Attorneys; Jeffrey 

Hahn, Counsel for Appellate and Special Litigation, Wayne 

R. Berry, Acting Associate Solicitor for Plan Benefits 

Security; Seema Nanda, Solicitor of Labor; United States 

Department of Labor, Office of the Solicitor, Plan Benefits 

Security Division, Washington, D.C.; for Amicus Curiae 

Secretary of Labor.

Martine N. D’Agostino and Ari Dybnis, Deputy Attorneys 

General; Karli Eisenberg, Supervising Deputy Attorney 

General; Renu R. George, Senior Assistant Attorney 

General; Rob Bonta, California Attorney General; Oakland, 

California; for Amicus Curiae The State of California. 

Julia Harvey, Special Assistant Attorney General; Sarah W. 

Rice, and Michael Field, Assistant Attorneys General; Peter 

F. Neronha, Rhode Island Attorney General; Rhode Island 

Attorney General’s Office, Providence, Rhode Island; Maria 

R. Lenz, Assistant Attorney General, Rhode Island Supreme 

Court, Office of Disciplinary Counsel, Warwick, Rhode 

Island; Thomas Ryan, Assistant Attorney General; Clare 

Kindall, Solicitor General; William Tong, Connecticut 

Attorney General; Connecticut Attorney General’s Office, 

Hartford, Connecticut; Sarah A. Hunger, Attorney, Attorney 

General’s Office, Chicago, Illinois; Kwame Raoul, Illinois

Attorney General; Illinois Attorney General’s Office, 

Chicago, Illinois; Aaron M. Frey, Maine Attorney General, 

Augusta, Maine; Ellen F. Rosenblum, Oregon Attorney 

General, Salem, Oregon; Charity R. Clark, Vermont 

Attorney General, Montpelier, Vermont; Robert W. 

Ferguson, Washington Attorney General, Olympia, 

Washington; Anthony G. Brown, Maryland Attorney 
8 WIT V. UNITED BEHAVIORAL HEALTH

General, Baltimore, Maryland; Dana Nessel, Michigan 

Attorney General, Lansing, Michigan; Aaron D. Ford, 

Nevada Attorney General, Carson City, Nevada; Matthew 

J. Platkin, New Jersey Attorney General, Trenton, New 

Jersey; Letitia James, New York Attorney General, New 

York, New York; for Amici Curiae Rhode Island, Colorado, 

Connecticut, Delaware, Illinois, Maine, Maryland, 

Michigan, Minnesota, Nevada, New Jersey, New York, 

Oregon, Vermont, Washington, and the District of 

Columbia. 

ORDER

The opinion filed on January 26, 2023, is vacated, and 

replaced with the concurrently filed opinion. The pending 

petition for panel rehearing [128] is GRANTED. Because 

we grant the petition for panel rehearing, the petition for 

rehearing en banc is DENIED as moot. The amicus curiae 

motions [133, 134, & 140], and motion for leave to file a 

reply in support of the petition for rehearing [147] are also 

DENIED as moot. Subsequent petitions for rehearing or 

rehearing en banc, if any, are permissible. 
WIT V. UNITED BEHAVIORAL HEALTH 9

OPINION

ANELLO, District Judge:

United Behavioral Health (“UBH”) appeals from the 

district court’s judgment finding it liable to classes of 

Employee Retirement Income Security Act of 1974, 29 

U.S.C. § 1001 et seq. (“ERISA”) plaintiffs under 29 U.S.C. 

§§ 1132(a)(1)(B) and (a)(3), as well as several pre- and posttrial orders, including class certification, summary 

judgment, and a remedies order. UBH contends on appeal 

that Plaintiffs lack Article III standing, and that the district 

court erred at class certification and trial in several respects.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we 

reverse in part. 

I

UBH is one of the nation’s largest managed healthcare 

organizations. It administers insurance benefits for mental 

health conditions and substance use disorders for various 

commercial health benefit plans. In this role, UBH 

processes coverage requests made by plan members to 

determine whether the treatment sought is covered under the 

respective plans. UBH retains discretion to make these 

coverage determinations “for specific treatment for specific 

members based on the coverage terms of the member’s 

plan.” 

Individually named plaintiffs David and Natasha Wit, 

Brian Muir, Brandt Pfeifer, Lori Flanzraich, Cecilia 

Holdnak, Gary Alexander, Corinna Klein, David Haffner, 

Linda Tillitt, and Michael Driscoll (collectively, 

“Plaintiffs”) are all beneficiaries of ERISA-governed health 

benefit plans for which UBH was the claims administrator. 
10 WIT V. UNITED BEHAVIORAL HEALTH

Plaintiffs all submitted coverage requests, which UBH 

denied.

Plaintiffs initiated this action on behalf of three putative 

classes, asserting, at issue here, two claims against UBH.

The first is for breach of fiduciary duty pursuant to 29 U.S.C. 

§ 1132(a)(1)(B) and “to the extent the injunctive relief 

Plaintiffs seek is unavailable under that section, they assert 

the claim under 29 U.S.C. § 1132(a)(3)(A).” Second, 

Plaintiffs brought an improper denial of benefits claim under 

29 U.S.C. §§ 1132(a)(1)(B) and (a)(3)(B). Both of 

Plaintiffs’ claims hinge on a theory that UBH improperly 

developed and relied on internal guidelines that were 

inconsistent with the terms of the class members’ plans and 

with state-mandated criteria.

1

Among the individually named Plaintiffs, there are ten 

different ERISA plans. Among the class members, there 

may be as many as 3,000 different plans. The Parties 

stipulated to a sample class of 106 members, from which 

they submitted a sample of health insurance plans (the 

“Plans”). Plaintiffs alleged that the Plans required, as a 

condition of coverage, that treatment be consistent with 

generally accepted standards of care (“GASC”) or were 

governed by state laws specifying certain criteria for making 

coverage or medical necessity determinations. Some of the 

plans administered by UBH were fully insured plans where 

UBH served a dual role as a plan administrator and insurer, 

both authorized to determine the benefits owed and 

responsible for paying such benefits. 

1 Plaintiffs also alleged that UBH developed the Guidelines to benefit its 

self-serving financial interests in breach of its fiduciary duties. 
WIT V. UNITED BEHAVIORAL HEALTH 11

The Plans provide that a precondition for coverage is that 

treatment be consistent with GASC. The Plans contain 

additional conditions and exclusions, and Plaintiffs did “not 

dispute that a service that is consistent with [GASC] may, 

nonetheless, be excluded from coverage under a particular 

class member’s plan.” For example, some plans may 

exclude “[s]ervices that extend beyond the period necessary 

for evaluation, diagnosis, the application of evidence-based 

treatments, or crisis intervention to be effective.” Some 

plans also may require that the service be the “least costly 

alternative.” The Plans grant UBH discretion to interpret 

these various terms and determine whether a requested 

service is covered. 

UBH employed two different processes to determine 

whether a requested service was covered. First, where the 

requested service was subject to a Plan exclusion, UBH 

issued an administrative denial. Administrative denials did 

not involve clinical reviews and are not at issue in this 

appeal. Second, for those claims not administratively 

denied, UBH conducted a clinical review, by which UBH 

Peer Reviewers made clinical coverage determinations. To 

assist with these clinical coverage determinations, UBH 

developed internal guidelines used by UBH’s clinicians. 

These guidelines included the challenged Level of Care 

Guidelines and Coverage Determination Guidelines 

(“Guidelines”). The Level of Care Guidelines were used for 

all Plans that limited coverage to medically necessary 

services. The Coverage Determination Guidelines were 

used for all plans not containing a medical necessity 

requirement. The Guidelines applied across Plans and were 

not customized based on specific plan terms. For this reason, 

among others, Plaintiffs argue that the Guidelines 
12 WIT V. UNITED BEHAVIORAL HEALTH

implemented only the plan exclusion for coverage 

inconsistent with GASC, which appeared in all plans. 

UBH issued new Level of Care Guidelines each year, 

which contained several parts. Following an introduction, 

the Level of Care Guidelines established “Common Criteria” 

that applied to coverage at all levels of care. They also 

included sections devoted to each specific level of care,

including residential treatment, intensive outpatient 

treatment, and outpatient treatment.2 Applicable to both the 

Common Criteria and the level of care sections, the Level of 

Care Guidelines provided specific requirements governing 

patients’ admittance to, continuation of, and discharge from 

care. For example, the 2014 Level of Care Guidelines 

Common Criteria provided that admission to any level of 

care is appropriate only where “[t]he member’s current 

condition cannot be safely, efficiently, and effectively 

assessed and/or treated in a less intensive setting due to acute 

changes in the member’s signs and symptoms and/or 

psychosocial and environmental factors.” Another criteria 

for admission to any level of care was that the “[s]ervices are 

within the scope of the provider’s professional training and 

licensure.” Plaintiffs challenge the former as more 

restrictive than GASC, but they do not challenge the latter. 

The Coverage Determination Guidelines were structured 

differently. Rather than focusing on level of care, most were 

organized by diagnosis. For instance, one set of Coverage 

Determination Guidelines addressed treatment of bulimia 

nervosa, while another addressed trauma- and stressorrelated disorders. Each set of Coverage Determination 

Guidelines provided detailed information about the 

2 The Level of Care Guidelines included sections addressing several 

other levels of care, but those are not at issue in this appeal.
WIT V. UNITED BEHAVIORAL HEALTH 13

appropriate treatment for the specific diagnosis. Each set of 

Coverage Determination Guidelines also referred to the 

Level of Care Guidelines. Although the references to the 

Level of Care Guidelines took a variety of forms and some 

Coverage Determination Guidelines referred to Level of 

Care Guidelines only “as support in a specific paragraph or 

paragraphs,” the district court concluded that each set of 

Coverage Determination Guidelines fully incorporated by 

reference the Level of Care Guidelines. With the exception 

of the Coverage Determination Guidelines for Custodial

Care, Plaintiffs challenge the Coverage Determination 

Guidelines only to the extent that they incorporate the Level 

of Care Guidelines. 

Plaintiffs alleged that many aspects of the Level of Care 

Guidelines were more restrictive than GASC and were also 

more restrictive than state-mandated criteria for making 

medical-necessity or coverage determinations. Plaintiffs 

further alleged that UBH breached its fiduciary duties to act 

solely in the interests of the participants and beneficiaries to

develop coverage criteria consistent with GASC. UBH also 

allegedly breached its fiduciary duties by developing

guidelines inconsistent with criteria explicitly mandated by 

state laws. Plaintiffs further contended that UBH breached 

its duties by promulgating self-serving, cost-cutting 

guidelines that are more restrictive than the Plans. As to 

their denial of benefits claim, Plaintiffs argued that UBH 

violated ERISA by improperly denying Plaintiffs benefits 

based on its Guidelines, which Plaintiffs allege are more 

restrictive than the Plans or criteria mandated by state laws. 

Plaintiffs sought certification of three proposed classes 

as to both claims: (1) the Wit Guideline Class; (2) the Wit 
14 WIT V. UNITED BEHAVIORAL HEALTH

State Mandate Class; and (3) the Alexander Guideline Class. 

The Wit Guideline Class was defined as:

Any member of a health benefit plan 

governed by ERISA whose request for 

coverage of residential treatment services for 

a mental illness or substance use disorder was 

denied by UBH, in whole or in part, on or 

after May 22, 2011, based upon UBH’s Level 

of Care Guidelines or UBH’s Coverage 

Determination Guidelines.

The Wit Guideline Class excludes members 

of the Wit State Mandate Class, as defined 

below.

The Wit State Mandate Class was defined as:

Any member of a fully-insured health benefit 

plan governed by both ERISA and the state 

law of Connecticut, Illinois, Rhode Island or 

Texas, whose request for coverage of 

residential treatment services for a substance 

use disorder was denied by UBH, in whole or 

in part, [within the Class period], based upon 

UBH’s Level of Care Guidelines or UBH’s 

Coverage Determination Guidelines and not 

upon the level-of-care criteria mandated by 

the applicable state law. . . .

The Alexander Guideline Class was defined as:

Any member of a health benefit plan 

governed by ERISA whose request for 

coverage of outpatient or intensive outpatient 
WIT V. UNITED BEHAVIORAL HEALTH 15

services for a mental illness or substance use 

disorder was denied by UBH, in whole or in 

part, on or after May 22, 2011, based upon 

UBH’s Level of Care Guidelines or UBH’s 

Coverage Determination Guidelines.

The Alexander Guideline Class excludes any 

member of a fully insured plan governed by 

both ERISA and the state law of Connecticut, 

Illinois, Rhode Island or Texas, whose 

request for coverage of intensive outpatient 

treatment or outpatient treatment related to a 

substance use disorder.

The classes differ in that the Wit State Mandate Class 

includes members whose denial of benefits was based on 

UBH’s Guidelines and not on state-mandated level-of-care 

criteria. The Guideline classes include members whose 

denials were based on the Guidelines and not on the terms of 

the Plans. The Wit Guideline Class included members who 

requested coverage of residential treatment services, 

whereas the Alexander Guideline Class included members 

who requested coverage of outpatient or intensive outpatient 

services. 

For their breach of fiduciary duties claim, Plaintiffs 

sought injunctive and declaratory relief. As to their denial 
16 WIT V. UNITED BEHAVIORAL HEALTH

of benefits claim, Plaintiffs sought reprocessing of their 

claims3 and argued:

Individual circumstances are . . . irrelevant to 

[this claim]. Plaintiffs are not asking this 

Court to determine whether Class members 

were owed benefits or whether UBH should 

be ordered to cause its plans to pay such 

benefits. Rather, Plaintiffs seek a 

reprocessing remedy, which stems directly 

from their allegation that UBH used an 

arbitrary process, premised on fatally flawed 

Guidelines, to deny their requests for 

coverage. For that reason, Plaintiffs need not 

prove at trial that UBH reached the wrong 

outcome in every single one of its coverage 

determinations.

UBH disagreed, arguing that individualized inquiries 

were needed to adjudicate the class claims, and it submitted 

an expert report containing examples of potential class 

members whose claims were denied at the initially requested 

level of care but who ultimately accepted alternate care, or 

whose claim was denied both because the requested 

treatment was inconsistent with the Guidelines and for other 

unrelated reasons. 

At a class certification hearing, the district court stated: 

“The complaint asserts denial of benefit claims for a variety 

of reasons other than the restrictive guidelines theory, and 

the question is are those still in the case? It’s transparent to 

3 Plaintiffs relatedly sought a declaration that UBH’s denial of benefits 

was improper and an order for UBH to apply the new guidelines in 

processing future claims. 
WIT V. UNITED BEHAVIORAL HEALTH 17

me, I guess, that you’re not seeking certification on those.” 

Plaintiffs stipulated that “if the case is certified as a class 

case” then “additional theories” requiring “individualized 

inquiries as to why UBH’s denials of the named Plaintiffs’ 

claims for benefits were wrongful” would “not be part of this 

case.” Plaintiffs also asserted at the class certification 

hearing that their denial of benefits claim was “a process 

claim,” because the claim is “about the fact that UBH used 

criteria that were inconsistent with the terms of the 

member’s plans.” 

On September 19, 2016, the district court granted 

Plaintiffs’ motion to certify these classes.4 In its order, the 

district court stated:

Of particular significance is the fact that 

Plaintiffs do not ask the Court to make 

determinations as to whether class members 

were actually entitled to benefits (which 

would require the Court to consider a 

multitude of individualized circumstances 

relating to the medical necessity for coverage 

and the specific terms of the member’s plan).

In this same order, the district court addressed whether 

the class would be ascertainable, and described a UBH 

database containing denial letters, which could identify any 

4 The district court later issued an order partially decertifying the class to 

exclude class members who successfully appealed their coverage 

denials, members who were initially improperly included because of a 

“flaw in the method used to identify class members,” and to modify the 

Illinois State Mandate Class period. 
18 WIT V. UNITED BEHAVIORAL HEALTH

denial that “referenced,” the Guidelines. Later, when the 

district court partially decertified the class, it explained:

First and foremost, the injury that is the basis 

of Plaintiffs’ claims was the adoption and use 

of flawed Guidelines in deciding whether 

Plaintiffs were entitled to coverage. As the 

Court explained on summary judgment, such 

an injury is cognizable under ERISA and 

consistent with existing case law, which does 

not require that Plaintiffs demonstrate that 

the flaws in UBH’s Guidelines were the butfor cause of the denial of their benefits.

Beginning October 16, 2017, the district court held a tenday bench trial. The district court, in its post-trial findings 

of fact and conclusions of law, relied upon Plaintiffs’ 

representations that their denial of benefits claim was a 

“process claim” only, stating “Plaintiffs stipulated at the 

class certification stage of the case that they do not ask the 

Court to make determinations as to whether individual class 

members were actually entitled to benefits . . . . Rather, they 

assert only facial challenges to the Guidelines.” 

The district court entered judgment in Plaintiffs’ favor, 

concluding that UBH breached its fiduciary duties and 

wrongfully denied benefits because the Guidelines 

impermissibly deviated from GASC and state-mandated 

criteria. The district court also found that financial 

incentives infected UBH’s Guideline development process, 

particularly where the Guidelines “were riddled with 

requirements that provided for narrower coverage than is 

consistent with” GASC. Based on these findings, the district 

court concluded that UBH breached its fiduciary duty to 
WIT V. UNITED BEHAVIORAL HEALTH 19

comply with Plan terms and breached its duties of loyalty 

and care “by adopting Guidelines that are unreasonable and 

do not reflect” GASC. It also held that UBH improperly 

denied Plaintiffs benefits by relying on its restrictive

Guidelines that were inconsistent with the Plan terms and 

state law.

The parties had stipulated, and the district court found, 

that the Plans gave UBH discretionary authority to create 

tools, such as the Guidelines, to facilitate interpretation and 

administration of the Plans. But the district court viewed 

UBH’s interpretation with “significant skepticism” because 

it found that UBH had a financial conflict of interest and a

structural conflict of interest as a dual administrator and 

insurer for some plans. Ultimately, the district court held 

that UBH’s interpretation embodied in the Guidelines was 

unreasonable and an abuse of discretion. 

In its extensive Findings of Fact and Conclusions of 

Law, the district court excused any unnamed class members 

for failing to exhaust their administrative remedies under the 

Plans despite acknowledging evidence that “some class 

members who did not exhaust available administrative 

remedies were required under their Plans to exhaust those 

remedies before they could bring a legal action against 

UBH.” The district court cited to one of the sample plans, 

which states: “You cannot bring any legal action against us

to recover reimbursement until you have completed all the 

steps [described in the plan].” The district court further 

found that exhaustion would have been futile. 

The district court issued declaratory and injunctive relief, 

directed the implementation of court-determined claims 

processing guidelines, ordered “reprocessing” of all class 

members’ claims in accordance with the new guidelines, and 
20 WIT V. UNITED BEHAVIORAL HEALTH

appointed a special master to oversee compliance for ten 

years. 

II

ERISA is a federal statute designed to regulate 

“employee benefit plan[s].” 29 U.S.C. § 1003(a). Congress 

enacted ERISA “to promote the interests of employees and 

their beneficiaries in employee benefit plans,” Shaw v. Delta 

Air Lines, Inc., 463 U.S. 85, 90 (1983), “by setting out 

substantive regulatory requirements for employee benefit 

plans and to ‘provid[e] for appropriate remedies, sanctions, 

and ready access to the Federal courts,’” Aetna Health Inc. 

v. Davila, 542 U.S. 200, 208 (2004) (alteration in original) 

(quoting 29 U.S.C. § 1001(b)). “The purpose of ERISA is 

to provide a uniform regulatory regime over employee 

benefit plans.” Id.

ERISA does not “require[] employers to establish 

employee benefits plans.” Lockheed Corp. v. Spink, 517 U.S. 

882, 887 (1996). “Nor does ERISA mandate what kind of 

benefits employers must provide if they choose to have such 

a plan.” Id. (first citing Shaw, 463 U.S. at 91; and then citing 

Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 511 

(1981)). Rather, ERISA “ensure[s] that employees will not 

be left empty-handed once employers have guaranteed them 

certain benefits.” Id. The Supreme Court has “recognized 

that ERISA represents a ‘careful balancing between ensuring 

fair and prompt enforcement of rights under a plan and the 

encouragement of the creation of such plans.’” Conkright v. 

Frommert, 559 U.S. 506, 517 (2010) (quoting Aetna Health, 

542 U.S. at 215). “Congress sought ‘to create a system that 

is [not] so complex that administrative costs, or litigation 

expenses, unduly discourage employers from offering 

[ERISA] plans in the first place.’” Id. (alterations in 
WIT V. UNITED BEHAVIORAL HEALTH 21

original) (quoting Varity Corp. v. Howe, 516 U.S. 489, 497 

(1996)). “ERISA ‘induc[es] employers to offer benefits by 

assuring a predictable set of liabilities, under uniform 

standards of primary conduct and a uniform regime of 

ultimate remedial orders and awards when a violation has 

occurred.’” Id. (alteration in original) (quoting Rush 

Prudential HMO, Inc. v. Moran, 536 U.S. 355, 379 (2002), 

overruled in part on other grounds by Ky. Ass’n of Health 

Plans v. Miller, 538 U.S. 329 (2003)).

Accordingly, 29 U.S.C. § 1132(a) “set[s] forth a 

comprehensive civil enforcement scheme.” Aetna Health, 

542 U.S. at 208 (2004) (quoting Pilot Life Ins. Co. v. 

Dedeaux, 481 U.S. 41, 54 (1987), overruled in part on other 

grounds by Miller, 538 U.S. 329). 

III

UBH argues that Plaintiffs lacked Article III standing to 

bring their claims because: (1) Plaintiffs did not suffer 

concrete injuries; and (2) Plaintiffs did not show proof of 

benefits denied, and so they cannot show any damages 

traceable to UBH’s Guidelines. We disagree. We review de 

novo the district court’s determination that Plaintiffs have 

Article III standing. See Spinedex Physical Therapy USA 

Inc. v. United Healthcare of Ariz., Inc., 770 F.3d 1282, 1288 

(9th Cir. 2014). 

To establish standing under Article III, “a plaintiff must 

show (i) that he suffered an injury in fact that is concrete, 

particularized, and actual or imminent; (ii) that the injury 

was likely caused by the defendant; and (iii) that the injury 

would likely be redressed by judicial relief.” TransUnion 

LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (citing Lujan 

v. Defs. Of Wildlife, 504 U.S. 555, 560–61 (1992)). “If ‘the 

plaintiff does not claim to have suffered an injury that the 
22 WIT V. UNITED BEHAVIORAL HEALTH

defendant caused and the court can remedy, there is no case 

or controversy for the federal court to resolve.’” Id. (quoting 

Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329, 333 

(7th Cir. 2019)).

To determine whether a statutory violation caused a 

concrete injury, we ask: “(1) whether the statutory 

provisions at issue were established to protect [the 

plaintiff’s] concrete interests (as opposed to purely 

procedural rights), and if so, (2) whether the specific 

procedural violations alleged in this case actually harm, or 

present a material risk of harm to, such interests.” Patel v. 

Facebook, Inc., 932 F.3d 1264, 1270–71 (9th Cir. 2019)

(alteration in original) (quoting Robins v. Spokeo, Inc., 867 

F.3d 1108, 1113 (9th Cir. 2017)). 

A

We find Plaintiffs sufficiently alleged a concrete injury 

as to their fiduciary duty claim. ERISA’s core function is to 

“protect contractually defined benefits,” US Airways, Inc. v. 

McCutchen, 569 U.S. 88, 100 (2013) (quoting Mass. Mut.

Life Ins. Co. v. Russell, 473 U.S. 134, 148 (1985)), and 

UBH’s alleged fiduciary violation presents a material risk of 

harm to Plaintiffs’ interest in their contractual benefits, see 

Ziegler v. Conn. Gen. Life Ins. Co., 916 F.2d 548, 551 (9th 

Cir. 1990) (“Congress intended to make fiduciaries culpable 

for certain ERISA violations even in the absence of actual 

injury to a plan or participant.”). Under the fiduciary duties 

section of ERISA, a fiduciary has a duty to administer plans 

“solely in the interest of the participants and beneficiaries . . 

. with . . . care, skill, prudence, and diligence,” and “in 

accordance with the documents and instruments governing 

the plan.” 29 U.S.C. § 1104(a). Plaintiffs alleged that UBH 

administered their Plans in UBH’s financial self-interest and 
WIT V. UNITED BEHAVIORAL HEALTH 23

in conflict with Plan terms. This presents a material risk of 

harm to Plaintiffs’ ERISA-defined right to have their 

contractual benefits interpreted and administered in their 

best interest and in accordance with their Plan terms. Their 

alleged harm further includes the risk that their claims will 

be administered under a set of Guidelines that impermissibly 

narrows the scope of their benefits and also includes the 

present harm of not knowing the scope of the coverage their 

Plans provide. The latter implicates Plaintiffs’ ability to 

make informed decisions about the need to purchase 

alternative coverage and the ability to know whether they are 

paying for unnecessary coverage. 

We also find Plaintiffs alleged a concrete injury as to the 

denial of benefits claim. As explained, ERISA protects 

contractually defined benefits, see McCutchen, 569 U.S. at 

100. Plaintiffs alleged a harm—the arbitrary and capricious 

adjudication of benefits claims—that presents a material risk 

to their interest in fair adjudication of their entitlement to 

their contractual benefits. Plaintiffs need not have 

demonstrated that they were, or will be, entitled to benefits 

to allege a concrete injury. See CIGNA Corp. v. Amara, 563 

U.S. 421, 424–25 (2011); cf. Ne. Fla. Chapter of Associated 

Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 

656, 666 (1993) (“When the government erects a barrier that 

makes it more difficult for” someone “to obtain a benefit” a 

plaintiff challenging “the barrier need not allege that he 

would have obtained the benefit but for the barrier in order 

to establish standing”). 

B

We also find that Plaintiffs alleged a particularized injury 

as to both claims. “For an injury to be ‘particularized,’ it 

‘must affect the plaintiff in a personal and individual way.’” 
24 WIT V. UNITED BEHAVIORAL HEALTH

Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (citation 

omitted), as revised (May 24, 2016). Plaintiffs’ alleged 

injuries are particularized because the Guidelines are applied 

to the contractual benefits afforded to each individual class 

member. The fact that Plaintiffs did not ask the court to 

determine whether they were individually entitled to benefits 

does not change the fact that the Guidelines materially 

affected each Plaintiff. Cf. Thole v. U.S. Bank N.A., 140 S. 

Ct. 1615 (2020) (holding no injury where alleged ERISA 

violations had no effect on plaintiffs’ defined benefit plan). 

Finally, Plaintiffs’ alleged injuries are “fairly traceable” 

to UBH’s conduct. An injury is “fairly traceable” where 

there is a causal connection between the injury and the 

defendant’s challenged conduct. Lujan, 504 U.S. at 560.

Plaintiffs’ alleged injuries are fairly traceable to UBH’s 

conduct because their interest in the proper interpretation of 

their contractual benefits, inability to know the scope of 

coverage under their Plans, and denial of coverage requests, 

are all connected to UBH’s alleged conduct of improperly 

developing Guidelines in its own self-interest and using 

those improper Guidelines in denying Plaintiffs’ coverage 

requests.

IV

UBH also appeals from the district court’s class 

certification order. The district court’s class certification 

decision is reviewed for an abuse of discretion. Pulaski & 

Middleman, LLC v. Google, Inc., 802 F.3d 979, 984 (9th Cir. 

2015). A district court abuses its discretion when its ruling 

is based “on an erroneous view of the law.” Id. (citation 

omitted). We review de novo the district court’s 

interpretation of ERISA. See Shaver v. Operating Eng’rs 

Loc. 428 Pension Tr. Fund, 332 F.3d 1198, 1201 (9th Cir. 
WIT V. UNITED BEHAVIORAL HEALTH 25

2003). UBH argues that the district court erred in certifying 

the three classes based on Plaintiffs’ “novel reprocessing 

theory” because Rule 23 of the Rules of Civil Procedure and 

the Rules Enabling Act, 28 U.S.C. § 2072(b), forbid using 

the class action procedure to expand or modify substantive 

rights. As to Plaintiffs’ denial of benefits claim, we agree.5

“[T]he Rules Enabling Act forbids interpreting Rule 23 

to ‘abridge, enlarge or modify any substantive right.’” WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 367 (2011) 

(quoting 28 U.S.C. § 2072(b)). We must therefore begin 

with the ERISA statute to determine Plaintiffs’ substantive 

rights. 

As discussed above, the purpose of ERISA is to “provide 

a uniform regulatory regime over employee benefit plans.” 

Aetna Health, 542 U.S. at 208. Accordingly, 29 U.S.C. 

§ 1132(a) “set[s] forth a comprehensive civil enforcement 

scheme” for accomplishing the overall purposes of ERISA.

Id. (quoting Dedeaux, 481 U.S. at 54). Two provisions are

particularly relevant: § 1132(a)(1)(B) and § 1132(a)(3). 

Under § 1132(a)(1)(B), “[i]f a participant or beneficiary 

believes that benefits promised to him under the terms of the 

plan are not provided, he can bring suit seeking provision of 

those benefits. A participant or beneficiary can also bring 

suit generically to ‘enforce his rights’ under the plan, or to 

5 UBH’s Rule 23 argument in its Opening Brief disputed class 

certification only on the grounds that Plaintiffs facially challenged the 

Guidelines and have asserted a “novel reprocessing theory” to advance 

their denial of benefits claim on a class-wide basis. This argument does 

not implicate a Rules Enabling Act issue as to the fiduciary duty claim. 

Thus, we deem any challenge to certification of the breach of fiduciary 

duty claim forfeited, and our analysis leaves class certification as to that 

claim intact. 
26 WIT V. UNITED BEHAVIORAL HEALTH

clarify any of his rights to future benefits.” Id. at 210 

(quoting 29 U.S.C. § 1132(a)(1)(B)). 

Plaintiffs argue that under ERISA, beneficiaries have a 

right to a “full and fair review” under the correct standard, 

Buffonge v. Prudential Ins. Co. Of Am., 426 F.3d 20, 30 (1st

Cir. 2005), and that where an administrator applies the 

wrong standard, remand is the appropriate remedy to enforce 

the right to full and fair review under the plan. While remand 

may be an appropriate remedy in some cases where an 

administrator has applied an incorrect standard, we conclude 

that the district court erred in granting class certification here

based on its determination that the class members were 

entitled to have their claims reprocessed regardless of the 

individual circumstances at issue in their claims.

We have ordered remand for claim reprocessing where a 

plaintiff has shown that his or her claim was denied based on 

the wrong standard and that he or she might be entitled to 

benefits under the proper standard. See, e.g., Saffle v. Sierra 

Pac. Power Co. Bargaining Unit Long Term Disability 

Income Plan, 85 F.3d 455, 458, 460–61 (9th Cir. 1996); 

Patterson v. Hughes Aircraft Co., 11 F.3d 948, 949–51 (9th 

Cir. 1993). We have never held that a plaintiff is entitled to 

reprocessing without a showing that application of the wrong 

standard could have prejudiced the claimant. In fact, we 

have declined to remand for reevaluation where it would be 

a “useless formality” because the administrator’s alleged 

error did not prejudice the claimant or it was clear that the 

claimant was ineligible for benefits. See Ellenburg v. 

Brockway, Inc., 763 F.2d 1091, 1095–96 (9th Cir. 1985)

(concluding a remand was an unnecessary and would be a

“useless formality” where plaintiff was ineligible for 

benefits), abrogated on other grounds by Watkins v. 

Westinghouse Hanford Co., 12 F.3d 1517, 1527 (9th Cir. 
WIT V. UNITED BEHAVIORAL HEALTH 27

1993); see also Hancock v. Montgomery Ward Long Term 

Disability Tr., 787 F.2d 1302, 1308 (9th Cir. 1986)

(declining to remand where plaintiff did not establish she 

was prejudiced by alleged procedural defect). Other circuits 

have similarly declined to remand for claim reevaluation or 

reprocessing where it would be futile. See, e.g., Judge v. 

Metro. Life Ins. Co., 710 F.3d 651, 659–60 (6th Cir. 2013)

(concluding that “even if [defendant] were found to have 

applied an incorrect definition of [the relevant plan term], a 

remand to [defendant] for reconsideration under the correct 

definition would be unavailing” where the defendant “would 

undoubtedly reach the same conclusion”); Giordano v. 

Thomson, 564 F.3d 163, 168 n.3 (2d Cir. 2009) (declining to 

reach claim that plaintiff was denied a “full and fair review” 

because “[r]emand would be futile”).

Plaintiffs further argue that class certification was proper 

because the Guidelines “were ‘riddled’ with errors, [and] the 

District Court found that every Guidelines-based denial 

necessarily implicated one or more of the many defects the 

District Court found.” Plaintiffs are correct that the district 

court reasoned that because the Guidelines were 

“significantly and pervasively more restrictive than” GASC 

in eight specific ways, “every adverse benefit determination 

made by UBH based in whole or in part on any of the 

Guidelines . . . was wrongful and made in violation of plan 

terms and ERISA.” But this conclusion is not supported by 

the record.

Plaintiffs defined their proposed classes such that every 

class member’s claim was denied, at least in part, based on 

UBH’s application of the Guidelines. The district court 

found that the Level of Care Guidelines represented UBH’s 

interpretation of GASC. It then made detailed findings 

illustrating that many provisions of the Level of Care 
28 WIT V. UNITED BEHAVIORAL HEALTH

Guidelines were more restrictive than GASC. These factual 

findings are not challenged on appeal. But there are also 

many provisions of the Level of Care Guidelines that 

Plaintiffs did not challenge and that the district court did not 

find to be overly restrictive. Plaintiffs do not show that 

claimants who were denied coverage solely based on 

unchallenged provisions of these Guidelines were denied a 

full and fair review, yet those claimants are included in the 

certified classes. 

The flaw in class certification is even more apparent with 

regard to the Coverage Determination Guidelines. The 

district court found that the Coverage Determination 

Guidelines incorporated the Level of Care Guidelines, but 

the incorporation of flawed Level of Care Guidelines does 

not demonstrate that class members whose claims were 

denied under the Coverage Determination Guidelines were 

necessarily denied a full and fair review. The Coverage 

Determination Guidelines included many unchallenged 

provisions, and some Coverage Determination Guidelines

incorporated the Level of Care Guidelines only “as support 

in a specific paragraph or paragraphs.” There is no 

indication that a claimant whose claim was denied under one 

of the many unchallenged provisions in the Coverage 

Determination Guidelines failed to receive a full and fair 

review of his or her claim. Nonetheless, such claimants were 

included in the classes.

Also fatal to Plaintiffs’ argument is that the classes were 

defined as members whose claims were denied in part based 

on the Guidelines. And the district court determined such 

classes were ascertainable based on a UBH database that 

could identify denials that merely referenced the Guidelines. 

UBH pointed to at least some evidence that some class 

members’ claims may have been denied for reasons wholly 
WIT V. UNITED BEHAVIORAL HEALTH 29

independent of the Guidelines even though the Guidelines 

were referenced in their denial letters. For such class 

members, remand for reevaluation may be a “useless 

formality,” Ellenburg, 763 F.2d at 1096, if UBH’s alleged 

error in utilizing the Guidelines did not prejudice them.

In sum, on this record Plaintiffs have fallen short of 

demonstrating that all class members were denied a full and 

fair review of their claims or that such a common showing is

possible. An individual plaintiff who demonstrated an error 

in the Guidelines would not be eligible for reprocessing

without at least some showing that UBH employed an errant 

portion of the Guidelines that related to his or her claim. 

Because the classes were not limited to those claimants 

whose claims were denied based only on the challenged 

provisions of the Guidelines, Rule 23 was applied in a way 

that enlarged or modified Plaintiffs’ substantive rights in 

violation of the Rules Enabling Act. See Dukes, 564 U.S. at 

367.

The district court also abused its discretion by 

concluding that the reprocessing remedy could arise under

§ 1132(a)(3). Section 1132(a)(3) is a “catchall” provision 

that allows appropriate equitable relief for injuries that 

§ 1132 does not otherwise remedy. Varity, 516 U.S. at 511–

12, 515; see also Moyle v. Liberty Mut. Ret. Benefit Plan, 

823 F.3d 948, 959 (9th Cir. 2016), as amended on denial of 

reh’g and reh’g en banc (Aug. 18, 2016). Where the alleged 

injury is improper denial of benefits, “a claimant may not 

bring a claim for denial of benefits under § 1132(a)(3) when 

a claim under § 1132(a)(1)(B) will afford adequate relief.” 

Castillo v. Metro. Life Ins. Co., 970 F.3d 1224, 1229 (9th 

Cir. 2020). Here, the type of relief that Plaintiffs seek is not 

available under § 1132(a)(3) where they declined to make 

the showing necessary to seek relief under § 1132(a)(1)(B).
30 WIT V. UNITED BEHAVIORAL HEALTH

Further, “[a]n individual bringing a claim under 

§ 1132(a)(3) may seek ‘appropriate equitable relief,’ which 

refers to ‘those categories of relief that, traditionally 

speaking (i.e., prior to the merger of law and equity) were 

typically available in equity.’” Castillo, 970 F.3d at 1229

(quoting CIGNA Corp. v. Amara, 563 U.S. 421, 439 (2011)). 

Plaintiffs and the district court did not explain or refer to 

precedent showing how reprocessing constitutes relief that 

was typically available in equity for infirm Guidelines 

unrelated to Plaintiffs’ claim for benefits. Consequently, the 

district court erred in concluding that reprocessing was an 

available remedy under 29 U.S.C. § 1132(a)(3).

The district court abused its discretion in certifying 

Plaintiffs’ denial of benefits claims as class actions.

Therefore, we reverse this part of the district court’s class 

certification order. 

V

Turning to the merits of Plaintiffs’ claims, we begin by 

noting that the same errors present in the district court’s 

denial of benefits class certification order also infected its 

merits and remedy determinations. Rather than determining 

whether UBH denied Plaintiffs’ claims under a flawed 

provision of the Guidelines, the district court determined that 

remand was appropriate anytime UBH referenced any 

portion of the Guidelines in denying the claims. 

UBH further argues that the district court erred by 

concluding that the Guidelines improperly deviated from 

GASC, and by failing to apply an appropriate level of 

deference to UBH’s interpretation of the Plans. As an initial 

matter, UBH did not appeal the portions of the district 

court’s judgment finding the Guidelines were impermissibly 
WIT V. UNITED BEHAVIORAL HEALTH 31

inconsistent with state-mandated criteria. This portion of the 

district court’s decision therefore remains intact. 

As discussed above, ERISA does not “mandate what 

kind of benefits employers must provide.” Black & Decker 

Disability Plan v. Nord, 538 U.S. 822, 833 (2003) (quoting 

Lockheed, 517 U.S. at 887). ERISA “focus[es] on the 

written terms of the plan” which “in short, [are] at the center 

of ERISA.” Heimeshoff v. Hartford Life & Accident Ins. 

Co., 571 U.S. 99, 108 (2013). The question then is not 

whether ERISA mandates consistency with GASC—it does 

not—but whether UBH properly administered the Plans 

pursuant to the Plan terms. See id.

“Where the benefit plan gives the administrator or 

fiduciary discretionary authority to determine eligibility for 

benefits or to construe the terms of the plan, we ordinarily 

review the plan administrator’s decisions for an abuse of 

discretion.” Schikore v. BankAmerica Suppl. Ret. Plan, 269 

F.3d 956, 960 (9th Cir. 2001); see also Firestone Tire & 

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). The 

administrator’s interpretation is an abuse of discretion if the 

interpretation is unreasonable. Moyle, 823 F.3d at 958.

Where the administrator or fiduciary has a conflict of 

interest, review of its interpretation will be “informed by the 

nature, extent, and effect on the decision-making process” of 

such conflict. Abatie v. Alta Health & Life Ins. Co., 458 F.3d

955, 967 (9th Cir. 2006). “We review de novo a district 

court’s choice and application of the standard of review to 

decisions by fiduciaries in ERISA cases.” Williby v. Aetna 

Life Ins. Co., 867 F.3d 1129, 1133 (9th Cir. 2017) (quoting 

Estate of Barton v. ADT Sec. Servs. Pension Plan, 820 F.3d 

1060, 1065 (9th Cir. 2016)). We review findings of fact for 

clear error. Abatie, 458 F.3d at 962. 
32 WIT V. UNITED BEHAVIORAL HEALTH

It is undisputed that the Plans in this case confer UBH 

with discretionary authority to interpret the Plan terms. The 

parties stipulated, and the district court found as a matter of 

fact, that this includes the discretion to create interpretive 

tools, such as the Guidelines. This finding was not clearly 

erroneous. Accordingly, UBH’s interpretation of the Plans 

via its Guidelines is reviewed for an abuse of discretion.

Schikore, 269 F.3d at 960. And the district court correctly

identified this standard of review. 

But the district court also found that UBH had a 

significant conflict of interest and therefore gave little 

weight to UBH’s interpretation of the Plans. Where an 

administrator has a dual role as plan administrator and plan 

insurer, there is a structural conflict of interest. See Stephan

v. Unum Life Ins. Co. of Am., 697 F.3d 917, 929 (9th Cir. 

2012). UBH served such a dual role as Plan administrator 

and insurer (authorized to determine the benefits owed and 

responsible for paying such benefits) for at least some of the 

Plans. The district court found, in addition to this structural 

conflict of interest, that UBH also had a financial conflict 

because it was incentivized to keep benefit expenses down. 

Again, the district court’s factual findings are not clearly 

erroneous.

However, the district court’s findings did not excuse it 

from applying the abuse of discretion standard. “Abuse of 

discretion review applies to a discretion-granting plan even 

if the administrator has a conflict of interest.” Abatie., 458 

F.3d at 965 (emphasis added). The conflict is weighed as a 

factor in determining whether the administrator abused its 

discretion. Stephan, 697 F.3d at 929; see also Metro. Life 

Ins. Co. v. Glenn, 554 U.S. 105, 115–17 (2008). The district 

court purported to apply an abuse of discretion standard 

tempered by high skepticism of UBH’s interpretation given 
WIT V. UNITED BEHAVIORAL HEALTH 33

UBH’s conflict of interest. UBH argues that even under a 

tempered abuse of discretion standard, the district court 

improperly substituted its own interpretation of the Plans’

terms by construing them to require coverage for all care 

consistent with GASC. Plaintiffs respond that the district 

court made no such mistake. Instead, they argue, the district 

court understood the Guidelines were specifically developed 

and employed to implement only the Plans’ requirement that 

all care must be consistent with GASC in order to be 

covered.

To the extent the district court concluded that the 

challenged portions of the Guidelines represented UBH’s 

implementation of the GASC requirement, we find no clear 

error. But to the extent the district court interpreted the Plans 

to require coverage for all care consistent with GASC, the 

court erred. Even assuming the conflicts of interest found 

by the district court warrant heavy skepticism against UBH’s 

interpretation, UBH’s interpretation that the Plans do not 

require coverage for all care consistent with GASC does not 

conflict with the plain language of the Plans. To the 

contrary, it gives effect to all the Plan provisions because the 

Plans exclude coverage for treatment inconsistent with 

GASC or otherwise condition treatment on consistency with 

GASC.6 In short, while the Plans mandated that a treatment 

be consistent with GASC, they did not compel UBH to cover 

all treatment that was consistent with GASC. 

6 UBH also argues that it did not abuse its discretion because substantial 

evidence supports the challenged portions of UBH’s Guidelines. We 

hold that it was not error for the district court to rule that UBH abused 

its discretion because the challenged portions of the Guidelines did not 

accurately reflect GASC. 
34 WIT V. UNITED BEHAVIORAL HEALTH

 The district court’s statements on this issue are 

conflicting. In several places throughout its orders, the 

district court made clear its understanding that consistency 

with GASC was just one requirement for coverage, and that 

some plans excluded coverage for care that was consistent 

with GASC. But there are other places in the record where 

the district court stated the opposite. For instance, in its 

partial decertification order, the court described class 

members as those “covered by insurance plans that require 

coverage consistent with generally accepted standards of 

care but were denied coverage by UBH under [the] 

Guidelines.” And the district court’s final judgment directed 

that on remand, UBH must “re-evaluate only whether the 

proposed treatment at the requested level of care was 

consistent with generally accepted standards of care,” even 

where the denial letter provided independent reasons for the 

denial of coverage. If the treatment was consistent with 

GASC, the court ordered UBH to pay the claims within 30 

days. 

We reverse the district court’s judgment that UBH 

wrongfully denied benefits to the named Plaintiffs to the 

extent the district court concluded the Plans require coverage 

for all care consistent with GASC.

7

7 The district court’s judgment on Plaintiffs’ breach of fiduciary duty 

claim also relied heavily on its conclusion that the Guidelines 

impermissibly deviated from GASC. But this was not the only finding 

relevant to the district court’s judgment on the breach of fiduciary duties 

claim. The district court also found, among other things, that financial 

incentives infected UBH’s Guideline development process and that UBH 

developed the Guidelines with a view toward its own interests. Our 

decision does not disturb these findings to the extent they were not 

intertwined with an incorrect interpretation of the Plans.
WIT V. UNITED BEHAVIORAL HEALTH 35

VI

Finally, UBH contends that the district court erred when 

it excused unnamed class members from demonstrating 

compliance with the Plans’ administrative exhaustion 

requirement. We remand for the district court to determine

in the first instance the threshold issue of whether the 

exhaustion requirement applies to the fiduciary claim and, if 

so, whether that requirement was satisfied by the unnamed 

class members or should otherwise be excused in light of our

decision. 

Because we conclude that the district court erred in 

certifying Plaintiffs’ denial of benefits claim, the only 

remaining class claim is for breach of fiduciary duty. 

Plaintiffs argue that exhaustion is not required for this 

statutory claim. We have held that exhaustion is not required 

for statutory breach of fiduciary duty claims. See Spinedex, 

770 F.3d at 1294 (citing Horan v. Kaiser Steel Ret. Plan, 947 

F.2d 1412, 1416 n. 1 (9th Cir.1991), overruled on other 

grounds as recognized by Pac. Shores Hosp. v. United 

Behav. Health, 764 F.3d 1030, 1041 (9th Cir. 2014)); see 

also Guenther v. Lockheed Martin Corp., 972 F.3d 1043, 

1052 (9th Cir. 2020). But exhaustion is required if a 

plaintiff’s statutory claim is a disguised claim for benefits. 

See Spinedex, 770 F.3d at 1294; see also Diaz v. United Agr. 

Emp. Welfare Ben. Plan & Tr., 50 F.3d 1478, 1484 (9th Cir. 

1995). UBH argued below and argues on appeal that 

Plaintiffs’ breach of fiduciary duty claim is such a “disguised 

benefit claim.” The district court did not decide this issue,

and instead assumed without deciding that the exhaustion 

requirement applies to Plaintiffs’ breach of fiduciary duty 

claim. Based on that assumption, the district court held that 

the class members were excused from exhausting their 

claims because the named Plaintiffs exhausted their 
36 WIT V. UNITED BEHAVIORAL HEALTH

remedies, which put UBH on notice of the class members’ 

facial challenges to the Guidelines, “thus fulfilling the 

purposes of UBH’s internal grievance procedure.” The 

district court further held that “in any event, exhaustion is 

not required because it would have been futile.”

We decline to reach the merits of whether the district 

court erred in holding that the class members were excused 

from exhausting their claims. Instead, we remand for the 

district court to determine the threshold question of whether 

Plaintiffs’ breach of fiduciary duty claim is a “disguised 

claim for benefits,” subject to the exhaustion requirement.

See Spinedex, 770 F.3d at 1294. If the district court 

determines that the exhaustion requirement does apply, it 

must then determine if that requirement was satisfied or 

otherwise excused in light of our resolution of the issues

presented in this appeal. 

VII

In sum, Plaintiffs have Article III standing to bring their

breach of fiduciary duty and improper denial of benefits 

claims pursuant to 29 U.S.C. §§ 112(a)(1)(B) and (a)(3). 

And the district court did not err in certifying three classes 

to pursue the fiduciary duty claim. However, by certifying 

the denial of benefits classes without limiting the classes to 

those with claims that UBH denied under a specific 

Guidelines provision(s) challenged in this litigation that 

applied to the claimant’s own request for benefits, the 

certification order improperly enlarged or modified 

Plaintiffs’ substantive rights in violation of the Rules 

Enabling Act. Accordingly, we reverse the district court’s 

certification of the denial of benefits classes.

On the merits, the district court erred to the extent it 

determined that the Plans require the Guidelines to be 
WIT V. UNITED BEHAVIORAL HEALTH 37

coextensive with GASC. Therefore, the judgment on 

Plaintiffs’ denial of benefits claim is reversed, and to the 

extent the judgment on Plaintiffs’ breach of fiduciary duty 

claim is based on the district court’s erroneous interpretation 

of the Plans, it is also reversed. And we remand for the 

district court to answer the threshold question of whether 

Plaintiffs’ fiduciary duty claim is subject to the exhaustion 

requirement.

AFFIRMED in part, REVERSED in part, and

REMANDED FOR FURTHER PROCEEDINGS. Each 

party to bear its own costs.