171 
‘‘(B) ASSESSMENT OF CIVIL PENALTIES.— 
In addition to the remedies provided for in 
paragraph (1) (relating to the failure to provide 
contract benefits in accordance with the plan), 
a civil assessment, in an amount not to exceed 
$5,000,000, payable to the claimant may be 
awarded in any action under such paragraph if 
the claimant establishes by clear and convincing 
evidence that the alleged conduct carried out by 
the defendant demonstrated bad faith and fla-
grant disregard for the rights of the participant 
or beneficiary under the plan and was a proxi-
mate cause of the personal injury or death that 
is the subject of the claim. 
‘‘(11) LIMITATION ON ATTORNEYS’ FEES.— 
‘‘(A) IN GENERAL.—Notwithstanding any 
other provision of law, or any arrangement, 
agreement, or contract regarding an attorney’s 
fee, the amount of an attorney’s contingency fee 
allowable for a cause of action brought pursu-
ant to this subsection shall not exceed 1⁄3 of the 
total amount of the plaintiff’s recovery (not in-
cluding the reimbursement of actual out-of- 
pocket expenses of the attorney).
172 
‘‘(B) 
DETERMINATION
BY
DISTRICT 
COURT.—The last Federal district court in 
which the action was pending upon the final 
disposition, including all appeals, of the action 
shall have jurisdiction to review the attorney’s 
fee to ensure that the fee is a reasonable one. 
‘‘(12) LIMITATION OF ACTION.—Paragraph (1) 
shall not apply in connection with any action com-
menced after 3 years after the later of— 
‘‘(A) the date on which the plaintiff first 
knew, or reasonably should have known, of the 
personal injury or death resulting from the fail-
ure described in paragraph (1), or 
‘‘(B) the date as of which the requirements 
of paragraph (9) are first met. 
‘‘(13) TOLLING
PROVISION.—The statute of 
limitations for any cause of action arising under 
State law relating to a denial of a claim for benefits 
that is the subject of an action brought in Federal 
court under this subsection shall be tolled until such 
time as the Federal court makes a final disposition, 
including all appeals, of whether such claim should 
properly be within the jurisdiction of the Federal 
court. The tolling period shall be determined by the
173 
applicable Federal or State law, whichever period is 
greater. 
‘‘(14) PURCHASE OF INSURANCE TO COVER LI-
ABILITY.—Nothing in section 410 shall be construed 
to preclude the purchase by a group health plan of 
insurance to cover any liability or losses arising 
under a cause of action under subsection (a)(1)(C) 
and this subsection. 
‘‘(15) EXCLUSION
OF
DIRECTED
RECORD-
KEEPERS.— 
‘‘(A) IN
GENERAL.—Subject to subpara-
graph (C), paragraph (1) shall not apply with 
respect to a directed recordkeeper in connection 
with a group health plan. 
‘‘(B) 
DIRECTED
RECORDKEEPER.—For 
purposes of this paragraph, the term ‘directed 
recordkeeper’ means, in connection with a 
group health plan, a person engaged in directed 
recordkeeping activities pursuant to the specific 
instructions of the plan or the employer or 
other plan sponsor, including the distribution of 
enrollment information and distribution of dis-
closure materials under this Act or title I of the 
Patients’ Bill of Rights Act of 2005 and whose