     Case: 12-50142   Document: 00512365109     Page: 1    Date Filed: 09/06/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                              September 6, 2013

                                 No. 12-50142                    Lyle W. Cayce
                                                                      Clerk

TERRI TRUITT, also known as Truitt Terri Griffith,

                                    Plaintiff - Appellee

v.

UNUM LIFE INSURANCE COMPANY OF AMERICA,

                                    Defendant - Appellant



                Appeal from the United States District Court
                     for the Western District of Texas


Before DAVIS, GRAVES and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
      Plaintiff-Appellee Terri Truitt claimed that her lower-back, leg, and foot
pain prevented her from working as an attorney. Defendant-Appellant Unum
Life Insurance Company of America (“Unum”) awarded Truitt long-term
disability benefits. Years later, a former companion of Truitt provided Unum
with emails indicating that, while claiming to be disabled, Truitt engaged in
activities, such as traveling abroad, that were inconsistent with her asserted
disability. Based, in part, on these emails, Unum denied Truitt’s claims, and
sought more than $1 million in reimbursements for benefits paid.
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                                  No. 12-50142

      The district court found that there was substantial evidence to support
Unum’s denial of benefits. Nonetheless, the district court held, among other
things, that the denial was procedurally unreasonable, and therefore an abuse
of discretion, because Unum did not fulfill its duty to “consider the source” of the
emails. In evaluating whether a plan administrator wrongfully has denied
benefits under the Employee Retirement Income Security Act (“ERISA”),
however, this court never has imposed a duty to investigate the source of
evidence. Instead, the burden is on the claimant to discredit evidence relied on
by the plan administrator. Because we find that Unum did not act arbitrarily
and capriciously, we REVERSE.
                       I. FACTS AND PROCEEDINGS
      Truitt worked as a partner in the Houston office of the Mayer Brown law
firm. Her expertise was international oil and gas litigation. In that capacity,
she traveled abroad, to countries including Sweden and Turkmenistan, for
arbitrations.   “Lifting and handling boxes in excess of 25 pounds” was a
“frequent requirement” of these trips.
      Truitt claimed that she first experienced numbness and pain in her lower
back, left leg, and left foot in 1999. Citing her continued pain and lack of
mobility, Truitt stopped working in 2002.        She also applied for long-term
disability benefits.
      The benefits plan (the “Plan”), administered by Unum, defined “disability”
to mean that, “because of injury or sickness”:
      1.    the insured cannot perform each of the material duties of his
            regular occupation; or
      2.    the insured, while unable to perform all of the material duties
            of his regular occupation on a full-time basis, is:
            a.     performing at least one of the material duties of his
                   regular occupation or another occupation on a part-time
                   or full-time basis; and



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                                  No. 12-50142

            b.     earning currently at least 20% less per month than his
                   indexed pre-disability earnings due to the same injury
                   or sickness.
      Note: For attorneys, “regular occupation” means the specialty in the
      practice of the law which the insured was practicing just prior to the
      date disability started.
      Finding that Truitt was disabled under the terms of the Plan, Unum
awarded her benefits in a May 2003 letter. However, Unum advised Truitt that
it required updated medical information to “clarify [her] current restrictions and
limitations.” Unum also notified Truitt that it reserved the right to discontinue
benefits, and to seek repayment of benefits paid, if, after receiving the updated
information, it determined that she was no longer disabled.
      Unum’s continued review of Truitt’s claim produced some evidence that
supported Truitt’s asserted disability. For example, neurologist Igor Cherches
found: that Truitt had “constant intractable pain”; that she was unable to stand
or walk for more than thirty minutes; and that she could not lift more than ten
pounds. Internist Karen Hoermann found that Truitt was “unable to carry legal
files required for employment,” and that “pain prevent[ed]” her from “remaining
seated for” more than one hour.
      This continuing review also produced evidence inconsistent with Truitt’s
disability. For example, surveillance videos showed Truitt walking, driving, and
bending down, and lifting and carrying boxes, bags, coolers, pumpkins, and a
dog. After conducting an Independent Medical Examination (“IME”), orthopedic
surgeon Michael Graham found that “it is clear that [Truitt] has little or no
physical impairment.”
      Unum explained that, “[d]espite the inconsistencies between Truitt’s
stated symptoms and observed activities, [it] continued to pay benefits.” Then,
on March 1, 2006, occupational therapist Steven Clark conducted a functional
capacity evaluation (“FCE”) of Truitt. Clark found: that Truitt was “inconsistent


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                                   No. 12-50142

with her gait, lumbar range of motion, and posture”; that Truitt “was observed
to be able to sit for up to 60 minutes at a time and stand for up to 50 minutes at
a time”; and that Truitt was also “observed to be able to sit for approximately 2
hours of the total time she was observed in the clinic.” Clark observed that,
while he could not offer a recommendation because of Truitt’s “self[-]limiting
behaviors and inconsistencies in abilities,” Truitt’s condition improved when she
was “unaware of observation.”
      Truitt contested Clark’s findings. She wrote in an April 24, 2006 letter
that Clark had “inflicted . . . intense pain” on her, and that, “[a]s a direct result
of that exam, I since have been confined to bed rest for approximately 15 hours
a day.” However, Unum conducted additional surveillance from April 6-8 that
showed Truitt: “removing items from the back seat of [her] Mercedes”;
“scrubbing the seats”; driving neighbors; and unloading items from her vehicle.
      Given this apparent inconsistency, Unum scheduled another IME.
Physician Aaron Levine examined Truitt, reviewed her medical records, and
watched her surveillance videos.       Levine concluded that, although Truitt
suffered from disc degeneration, her scores on physical tests showed a “severe
perception of physical disability in excess of her physical findings.” He added
that, although sedentary work might “accentuate her symptoms,” there was
“nothing objective in my examination to prevent her from doing sedentary work.”
      In a twelve-page letter dated August 21, 2006, Unum notified Truitt that
it was terminating her benefits. Unum explained that, based on its review of
Truitt’s medical records and the surveillance videos, there was “no objective
information that supports [Truitt’s] inability to perform [her] occupational
demands as a trial attorney.” Unum added that it believed Truitt could work as
a trial attorney because she could “sit[ ] on a frequent to constant basis or on a
prolonged nature” and “stand[ ] and walk[ ] for brief periods of time,” and



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because “[i]t would be reasonable that accommodations c[ould] be made” for her
lifting restrictions.
      Truitt filed an administrative appeal. She argued, among other things,
that Unum did not fully consider the specific demands of her job, in particular
her extensive business travel.
      Vocational specialist Richard Byard reviewed Truitt’s file. He found that
Truitt’s “occupation [did] not require repetitive bending, climbing, stooping or
kneeling motions.” He nonetheless concluded that the “physical demands” of
Truitt’s job “would exceed [her] level of work capacity” because the “business[-
]related travel demands of her occupation,” such as “lengthy flights,” were
“incompatible” with the “requirement that she ‘be allowed to change posture as
needed, likely 2-3 times per hour.’”
      Based largely on Byard’s findings, Unum notified Truitt in a July 2007
letter that it was reinstating her benefits. Unum again advised Truitt that she
would need to provide “periodic updates of her medical status to determine if she
remains eligible for continued benefits under the applicable policy provisions.”
      Around the same time that Truitt’s benefits were reinstated, a man
identifying himself as Andrew Mark Thomas called Unum. Thomas said: that
he had been in a personal relationship with Truitt for “a number of years”; that
Truitt had him “locked up” and deported to the United Kingdom; that, as a
result, he wanted “to see the b**** locked up”; and that he had photos, travel
itineraries, and other documents that showed that Truitt was not totally
disabled. Thomas sent Unum a follow-up email asking to be paid six times “the
current monthly payments made to” Truitt in exchange for providing “complete
evidence that [she] is obtaining monthly (disability) payments under false
preten[s]es.” He warned: “This is a one[-]time offer, and no further thought will
be given if you decide to decline.”



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       Unum responded that it “does not pay for fraud[-]related information,” but
that Thomas was “free to call” if he was willing “to provide this information
without compensation.”
       Thomas proceeded to provide, without compensation, some emails
purportedly sent by Truitt. Unum asked Thomas if there were “any additional
emails/information available which might shed additional light regarding this
case?” Responding that “this is personal to me,” Thomas provided Unum with
additional emails.1 In total, Thomas provided more than 600 pages of emails,
spanning March 2005 to July 2007.
       The emails revealed that, while Truitt claimed to be disabled, she
apparently engaged in activities that were inconsistent with her asserted
limitations.     For example, the emails—which included flight and hotel
itineraries, and eTickets—indicated that Truitt flew to: Amarillo, Texas;
Oklahoma City; New York City; Akumal, Mexico; Cancun, Mexico; Jamaica;
Guatemala; Venezuela; England; Ireland; France; and Italy:
       •       March 15, 2005: Truitt writes that she is “here in . . . NYC.”
               In a later email, she references “hav[ing] been in NYC.”
       •       April 6, 2005: Truitt writes: that she intends to be in Russia
               in October; that she “already paid for a trip to Ireland”; that
               she was “thinking of doing a road tour” of Ireland; and that
               she plans to return to Akumal. She later receives an itinerary
               listing her as flying to Ireland.
       •       April 12, 2005: Truitt writes to an employee at a Guatemala
               hotel that she “bid on and won . . . a three night stay” at the
               hotel, and that she would like to “extend [her] stay for a


       1
           Thomas also offered to “sign an affidavit and give sworn evidence to a court if
required.” Unum responded that “[o]nce we have received and reviewed this documentation,
we would create an affidavit for you to review and sign regarding this material.” What
happened next is unclear, but it appears that Thomas refused to provide an affidavit. Truitt
swore, in a July 2011 affidavit, that she received a May 2011 email from Thomas in which he
wrote: “I haven’t actually given a signed statement or any more information to UNUM just yet,
but they keep asking me. [Unum] has phoned & mailed me a couple of times, I’ve not
responded to his requests yet.” (Emphasis added.)

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                             No. 12-50142

       longer period.” She later receives a reservation listing her as
       flying to Guatemala.
 •     July 24, 2005: Truitt writes that she is “scheduled to do some
       heavy[-]duty traveling Aug. through Dec. out of the country,
       mostly.”
 •     September 9, 2005: Truitt forwards an itinerary listing her
       as flying to Oklahoma City. She also mentions that she has
       “rented a car in Okla City.”
 •     September 23, 2005: Truitt writes: “I got on your same
       flights from Dallas to Rome . . . and have a seat next to yall
       for the Dallas to London leg of the trip. I will stay after you all
       leave Rome, and I will travel in France, etc. for a few weeks.”
       She also forwards a flight itinerary listing her as traveling to
       Rome.
 •     September 24, 2005: Truitt writes that she has been in “6
       different airports . . . in the last 48 hours.”
 •     September 28, 2005: Truitt forwards an itinerary listing her
       as flying from Rome to Paris. She later forwards hotel
       reservations listing her as staying in France and Italy.
 •     January 11, 2006: Truitt books a hotel room in Jamaica.
 •     May 31, 2006: Truitt forwards an eTicket listing her as flying
       to Guatemala.
 •     June 12, 2006: Truitt forwards an itinerary listing her as
       flying from Rome to Paris.
 •     June 16, 2006: Truitt forwards an itinerary listing her as
       flying round trip from San Antonio to London.
 •     August 31, 2006: Truitt forwards an itinerary listing her as
       flying to Amarillo.
 •     December 23, 2006: Truitt forwards an itinerary listing her
       as flying to Cancun.
 •     February 24, 2007: Truitt writes that she is “going to be
       traveling lots beginning mid[-]April to mid[-]Sept this year.”
 •     April 10, 2007: Truitt writes that she will be in Akumal, and
       that she is “thinking of flying straight from Cancun to
       Minneapolis.”
 •     May 11, 2007: Truitt forwards an eTicket listing her as flying
       to England.
 •     May 18, 2007: Truitt forwards an email discussing a four-
       week hotel reservation in Akumal.
 •     May 22, 2007: Truitt forwards an itinerary listing her as
       flying to Venezuela.


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      The emails indicated that Truitt engaged in, or planned to engage in,
activities that appear to be physically demanding:
      •     April 4, 2005: Truitt writes that she is dancing on her deck.
      •     May 6, 2005: Truitt writes that she’s been “out working and
            riding,” and that “[i]t’s loads of work to keep up with 2 acres
            by myself, much less this house.”
      •     October 18, 2005: Truitt writes that she’s “[b]een busting a**
            cleaning both my house and Julie’s next door.”
      •     June 3, 2006: Truitt writes that she is in Guatemala, and
            that she traveled in “[p]lanes, a van on the most winding,
            curving mountainous 2 lane road for 3 hours, then a boat ride
            across Lake Atitlan in the clouds and lightning! Good thing
            I’m a seasoned traveler!”
      •     June 11, 2006: Truitt writes: “I personally picked up 88
            gallons of trash just on my property alone each day of the
            Memorial Day weekend.”
      •     March 26, 2007: Truitt writes that, while in Europe, she and
            Thomas will be driving for two days to reach Italy.
      •     May 13, 2007: Truitt writes: “[W]e are all on our way to . . .
            the farm to shoot guns[.]”
      •     May 19, 2007: Truitt writes: “Had to clean [her house] for 2
            days, total of about 14 hours, still didn’t get it all done and
            broke my . . . back doing it.”
      •     May 23, 2007: After expressing interest in sailing to an
            island off the coast of Venezuela, Truitt writes: “[W]e are
            ready to sail when you are!”
      •     June 28, 2007: Truitt writes that she is on an island off the
            coast of Venezuela, and “would like to do” a “fishing trip with
            snorkeling included.”
      The emails suggested that Truitt engaged in legal work:
      •     July 24, 2005: Truitt writes that she “ha[s] a hearing [she is]
            prepping for in the am.”
      •     January 2, 2006: Truitt requests a meeting to discuss:
            “discovery issues”; “arbitration prep and strategy”; “fee
            arrangement”; “other items on case”; and “tasks for [Truitt] to
            assist with on the case.” Truitt adds that she is “planning a
            European trip,” but that, “[d]epending on the case, which will
            take top priority for me through the final hearing, I will fly
            back to work on it with you.”


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       •      April 5, 2006: Truitt writes that she “missed [a] board
              meeting” because she is “swamped working on a case about to
              go to mediation and trial.”
       •      May 12, 2006: Truitt writes that she is “in trial this coming
              week in Houston.”
       •      May 25, 2006: Truitt writes: “We finally finished our
              trial/arbitration last week after 4 years of toil and ordeal
              going after Prudential and Wachovia and their broker for
              stealing my Grandad’s life savings in a Ponzi Scheme. . . . WE
              WON!”
       •      October 27, 2006: Truitt writes that she is “working on
              recreating [her] law practice . . . and focusing on mediation
              rather than litigation.”
       •      May 25, 2008: Truitt writes: “After this Unum drama is over,
              I am hoping to have a part[-]time mediation practice in the
              San Antonio area[.]”2
       The emails also implied that Truitt knowingly was misleading Unum:
       •      October 11, 2005: Truitt writes: “Fell today on the rainy
              steps . . . and banged myself up really good on both knees, one
              elbow, both wrists and right eye . . . and lips. I look like
              someone beat the s*** out of me. . . . The good news is that I
              am very sore, so that should help with tomorrow’s exam.”
       •      April 21, 2007: In response to an email from her attorney
              warning her to “be on the guard that [Unum] ha[s] used
              private eyes in the past and will probably still be using them,”
              Truitt writes: “It looks like I have to stay put till Unum has
              made its determination.”
       •      April 22, 2007: Truitt writes: “I hope to get a lot done. Trying
              to motivate myself, but must remember the cameras may be
              watching.”
       •      April 23, 2007: Truitt writes: “Let me know if you need me to
              bring anything you may need or may have forgotten when I


       2
         After initiating her lawsuit against Unum, Truitt explained in an affidavit that many
of these emails reference a case to recover money stolen from her grandfather, and that,
although she “attend[ed] the mediation and arbitration hearing,” she “was not an attorney of
record.” Although “[w]e limit our review of the interpretation of a benefits plan under ERISA
to the administrative record,” LifeCare Mgmt. Servs. LLC v. Ins. Mgmt. Adm’rs Inc., 703 F.3d
835, 841 (5th Cir. 2013), we note, as detailed below, that we do not rely on the emails
suggesting that Truitt engaged in legal work to support our finding that the plan
administrator properly terminated her benefits.

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                                 No. 12-50142

            am finally able to come down [to Venezuela]. I’m pissed Unum
            is controlling my life once more.”
       •    April 24, 2007: Truitt writes: “I am hoping Unum will have
            made some sort of determination so I can come see my honey
            in [Venezuela].”
       •    May 8, 2007: Truitt wrote to her attorney: “I had planned to
            go on a family vacation out of the country, but I certainly do
            not want to jeopardize our claim. What are your thoughts
            about this?” Her attorney responded: “You need to continue
            living your life.”
       In a March 2009 letter, Unum wrote: “It has come to our attention that
[Truitt] has been engaging in the practice of law and that she has been traveling
extensively by airplane internationally.” As a result, Unum explained, it was
suspending Truitt’s benefits pending an investigation into her disability status.
Unum added that, if Truitt “ha[d] additional information to support her request
for disability,” it would “be happy to reconsider her claim.”
       Truitt sent Unum a three-page affidavit. Truitt recounted how she had
been assaulted by Thomas. She then stated: that Thomas was “a computer and
hacker expert”; that he “copied onto his laptop virtually all of the data from my
personal computer”; and that his “laptop also has computer hacking programs
and communications stating that Mr. Thomas was planning to ‘grass’ me up to
UNUM and steal money from me.” Truitt characterized an email purportedly
from Thomas—in which he threatened to tell Unum that he had “detailed
knowledge & evidence of a long[-]term fraud being commi[t]ted by a[n] insured
client of Unum”—as “threatening to send false information to UNUM.” She also
asserted that “[n]one of the statements Mr. Thomas threatened to make to
UNUM are true.”
       Along with the affidavit, Truitt sent Unum documents confirming that
Thomas pled guilty to assaulting Truitt by strangling her during a November
2007 camping trip. She also sent medical records, tax returns, and relevant case
law.

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      Unum physician Suzanne Benson reviewed Truitt’s updated file, which
included these additional documents. Benson found that the “file information
did not support clinically significant structural insufficiency at the knee or
spine.” Benson concluded: that the emails “describe claimant activity in excess
of what she reported at the FCE and what [a]ttending [p]hysicians report she
can do”; that “[t]ravel described in claimant e-mails was consistent with
tolerance of constant sitting”; and that therefore “[a] requirement for a change
in posture every 20 to 30 minutes is not needed and is not supported by the
travel described in claimant e-mails.”
      “Because of the difference in opinion between Dr. Benson and Truitt’s
attending physicians,” Unum had additional medical experts review the updated
file. Physician Malcolm McPhee agreed that, although there was conflicting
evidence of Truitt’s disability, the emails “indicate that the claimant has been
functioning at least at a light level of physical activity.” Vocational consultant
Anthony Morin concluded that “it would appear that [Truitt] would be able to
perform the duties of her own occupation.”
      Unum notified Truitt in a fourteen-page letter dated October 27, 2009 that
it was terminating her benefits. Unum first explained that “[t]he flight itinerary
information we received, as well as e-mails, which originated from [Truitt],
contradict statements she made to us during the course of her . . . claim.” For
example:
      •     Truitt contacted Unum on August 20, 2005 to say: that her
            condition had gotten worse; that her mother was taking care
            of her; that she would not be able to attend an FCE scheduled
            for September 2, 2005; and that she would not be available
            until September 24, 2005. Yet Truitt’s travel records showed
            that she was traveling in Europe between August 7, 2005 and
            September 22, 2005.
      •     Truitt told Unum in an April 24, 2006 letter that, since a
            March 1, 2006 FCE, she had “been confined to bed rest for
            approximately 15 hours per day.” Yet video surveillance on

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              April 6, 2006 showed Truitt “driving for most of the day and
              removing several items from her vehicle.”
       •      Truitt told physician Levine during a June 9, 2006 IME that
              she had stayed in bed for 15 hours a day since the March 1,
              2006 FCE. Yet “[d]uring this time period, some of the
              activities she was performing included international
              traveling, working, purchasing tickets to attend a Gala event,
              riding and keeping up two acres of property by herself.”
Unum then concluded, relying on the emails, medical reports, and surveillance
videos, that Truitt was not disabled under the terms of the plan because: she
“has clearly demonstrated the ability to sit and stand for extended periods of
time”; she “was able to perform activities beyond her repeated limitations”; she
was “not only able to travel, but in fact traveled extensively both nationally and
internationally”; and she “continued to practice law.” Unum further advised
Truitt that, because she wrongfully received benefits from March 2005 through
August 2007, she owed Unum more than $1 million in reimbursements.
       Truitt filed a thirty-one page administrative appeal challenging Unum’s
termination of benefits. Although seeming to acknowledge that she had been
“traveling internationally for recreation,”3 Truitt argued that the surveillance
videos and emails were unreliable. Specifically, Truitt maintained that “the
information provided by Thomas is no basis for suspension or denial of benefits”
because “Thomas is biased and willing to do anything to hurt Ms. Truitt.”
       Truitt also sent Unum expert reports in support of her appeal. Insurance
claims expert Ted Marules concluded that Unum wrongfully based its denial of
benefits on a “biased interpretation of selected medical information,” an
“inaccurate description of [Truitt’s] actual job responsibilities and daily
activities,” and “[i]nformation provided by a known criminal whose intent was



       3
         In her appeal, Truitt characterized her apparent trips abroad as “traveling
internationally for recreation,” but did not dispute that she took such trips. Instead, she
focused on the distinction between recreational and business travel.

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                                  No. 12-50142

clearly biased towards” Truitt. Rehabilitation counselor Barbara Dunlap found
that the “[a]bility to take a vacation involving international travel does not
equate with the mental and physical rigors of work[-]related travel.” She also
observed that “[c]onversational emails have no objective measure of reliability
or validity; the subjective information contained within an email can be
fabricated and exaggerated and conversational emails are frequently on the
same level as gossip.” “[E]lectronics countermeasure expert” Dennis Chevalier
noted that “[e]mail and password thefts are extremely easy . . . for the novice and
expert to do,” and that “[b]ecause this is such an easy activity to perform by
anyone, information obtained from these emails has to be suspect.”
      In response to Truitt’s appeal, Unum again reviewed her claim.
Vocational expert Byard, who previously had concluded that the business travel
required by Truitt’s job “would exceed [her] level of work capacity,” found that
his “prior concerns” were “no longer . . . relevant.” Rebutting Dunlap’s assertion
that recreational travel does not equate to business travel, Byard noted that
Truitt’s “frequen[t] and extensive[ly] demonstrated recreational travel can be
viewed as a direct measure of her ability to successfully participate in business[-
]related air travel.”    Physician Andrew Krouskop likewise concluded that,
“[c]onsidering the claimant’s conditions in aggregate, no additional restrictions
are supported.”
      Unum notified Truitt in a July 2010 letter that it was upholding its
decisions to discontinue benefits and seek reimbursement of the more than $1
million in overpayments. Unum again detailed the medical records, vocational
reviews, and emails that supported its decisions. Unum then explained: “While
you state in your appeal letter that email information can be manipulated and
tampered with you have not demonstrated that this has occurred in this case.”
Unum added: “The emails between [Truitt] and Mr. Thomas not only discuss
personal matters but they also contain specific references to what was

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                                  No. 12-50142

happening during [Truitt’s] disability claim. Thus, your statements that
conversational emails are not reliable and are on the same level of gossip are
incorrect as it pertains to this claim.”
      Truitt filed suit, alleging that Unum wrongfully terminated her benefits.
Unum filed a counterclaim seeking to recover more than $1 million in benefits
it alleged that Truitt fraudulently obtained.
      The district court granted Truitt’s motion for judgment based on the
administrative record. The district court explained that it was “not holding the
record lacks substantial evidence in support of Unum’s decision.” Instead, the
district court found that, although Unum’s administrative process is not “limited
to considering only legally admissible evidence,” the “decision Unum made to
rely on Thomas’ emails, and the weight it granted the information contained in
them, was arbitrary and capricious.” Given that “Unum has failed to establish
Plaintiff’s representations to it were false,” the district court also rejected
Unum’s counterclaim for reimbursement of overpayments. Unum appeals.
                                 II. ANALYSIS
      The two issues on appeal are (1) whether the plan administrator abused
its discretion in denying Truitt’s benefits; and (2) whether Truitt must reimburse
more than $1 million in benefits.
(1) Unum’s Denial of Benefits
      “This court reviews de novo the district court’s conclusion that an ERISA
plan administrator . . . abuse[d] its discretion in denying benefits, and in doing
so reviews the plan administrator’s decision from the same perspective as the
district court.” Anderson v. Cytec Indus., Inc., 619 F.3d 505, 511-12 (5th Cir.
2010) (per curiam) (internal citation omitted).
      The district court found, and the parties do not dispute, that the benefits
plan at issue in this case gave Unum discretionary authority to construe the
terms of the plan and render benefits decisions. We therefore review the plan

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                                  No. 12-50142

administrator’s decision to deny benefits for abuse of discretion. See Holland v.
Int’l Paper Co. Ret. Plan, 576 F.3d 240, 246 (5th Cir. 2009).
      A plan administrator abuses its discretion if it acts “arbitrarily or
capriciously.” Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211,
214 (5th Cir. 1999) (quoting Sweatman v. Commercial Union Ins., Co., 39 F.3d
594, 601 (5th Cir. 1994)). A decision is arbitrary and capricious only if it is
“made without a rational connection between the known facts and the decision
or between the found facts and the decision.” Meditrust, 168 F.3d at 215 (quoting
Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828 (5th Cir.
1996)); see Vega v. Nat’l Life Ins. Servs., Inc. 188 F.3d 287, 302 (5th Cir. 1999)
(en banc) (observing that there only need be “concrete evidence in the
administrative record that supports the denial of the claim”), overruled on other
grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008); Holland, 576 F.3d
at 247 (“Our ‘review of the administrator’s decision need not be particularly
complex or technical; it need only assure that the administrator’s decision fall
somewhere on a continuum of reasonableness—even on the low end.’”) (quoting
Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 398 (5th Cir. 2007)).
      In deciding whether there was an abuse of discretion, we also consider
whether the plan administrator has a conflict of interest. See Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). A plan administrator has a
conflict of interest if it “both evaluates claims for benefits and pays benefits
claims.” Glenn, 554 U.S. at 112. “[C]onflicts are but one factor among many that
a reviewing judge must take into account.” Id. at 116. “[A]ny one factor will act
as a tiebreaker when the other factors are closely balanced, the degree of
closeness necessary depending upon the tiebreaking factor’s inherent or
case-specific importance.” Id. at 117. “The conflict of interest . . . should prove
more important (perhaps of great importance) where circumstances suggests a
higher likelihood that it affected the benefits decision, including, but not limited

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                                         No. 12-50142

to, cases where an insurance company administrator has a history of biased
claims administration.” Id.; see Holland, 576 F.3d at 248 (observing that “the
specific facts of the conflict will dictate its importance”). “It should prove less
important (perhaps to the vanishing point) where the administrator has taken
active steps to reduce potential bias and to promote accuracy[.]” Glenn, 554 U.S.
at 117.
       The district court found, and the parties do not dispute, that there was
substantial evidence to support Unum’s decision to deny Truitt’s benefits. The
parties also do not argue that Unum denied Truitt a “full and fair review” of her
benefits claim.4 This appeal therefore reduces to whether Unum otherwise
abused its discretion in denying Truitt’s benefits.
A. Unum’s Finding that Truitt was not Disabled
        The district court found that a “factor the reviewing court may consider
in determining whether the administrator abused its discretion [is] whether
circumstances surrounding the administrator’s decision suggest ‘procedural
unreasonableness.’”           The     district    court    acknowledged         that    “Unum’s
administrative process is [not] limited to considering only legally admissible
evidence,” but nonetheless found that Unum (i) did not “investigat[e] into the
accuracy of the information it gleaned from the emails,” and (ii) did not fulfill its
“duty to consider the source of the information it considers and weigh the



       4
          A plan administrator fails to provide a “full and fair review” if it does not comply with
the “procedures set forth in [29 U.S.C.] § 1133 of ERISA and in the Department of Labor
regulations promulgated pursuant to that section.” Schadler v. Anthem Life Ins. Co., 147 F.3d
388, 393 (5th Cir. 1998). These procedures require, among other things, that a plan
administrator provide a claimant with “specific reasons” for terminating benefits, see Robinson
v. Aetna Life Ins. Co., 443 F.3d 389, 392-93 (5th Cir. 2006), and identify “medical or vocational
experts whose advice was obtained on behalf of the plan in connection with a claimant’s
adverse benefit determination.” Lafleur v. La. Health Serv. & Indem. Co., 563 F.3d 148, 154
(5th Cir. 2009) (quoting 29 C.F.R. § 2560.503-1(h)(3)(iv)). As discussed below, the “procedural
unreasonableness” of a plan administrator’s decision is a separate concept that is a subset of
our conflict of interest analysis.

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                                       No. 12-50142

information accordingly.” The district court concluded that the “decision Unum
made to rely on Thomas’ emails, and the weight it granted the information
contained in them, was arbitrary and capricious.”
       This concept of “procedural unreasonableness” traces to the Supreme
Court’s Glenn decision. In Glenn, a plan administrator denied a claim for
benefits based on the Social Security Administration’s (“SSA”) finding that the
claimant could do sedentary work. See 554 U.S. at 118. The Supreme Court
observed that this “course of events . . . suggested procedural unreasonableness”
because the plan administrator initially had urged the claimant to argue to the
SSA that she could not work. Id. In Schexnayder. v. Hartford Life & Accident
Ins. Co., this court interpreted the Supreme Court’s reference to “procedural
unreasonableness” to mean that a “reviewing court may give more weight to a
conflict of interest, where the circumstances surrounding the plan
administrator’s decision suggest ‘procedural unreasonableness.’” 600 F.3d 465,
469 (5th Cir. 2010). This court concluded: “Although substantial evidence
supported [the plan administrator’s] decision, the method by which it made the
decision”—that is, the plan administrator’s “[f]ailure to address a contrary SSA
award”—“was unreasonable, and the conflict, because it is more important under
the circumstances, acts as a tiebreaker for us to conclude that [the plan
administrator] abused its discretion.”5 Id. at 471. This court’s subsequent
decision in Crowell v. CIGNA Grp. Ins. reinforced that a plan administrator’s
“procedural unreasonableness” informs “how much weight to afford the apparent
conflict.” 410 F. App’x 788, 793-94 (5th Cir. 2011).
       This precedent indicates that whether the plan administrator’s decision
is “procedurally unreasonable”—that is, whether the “method by which [the plan
administrator] made the decision was unreasonable”—is a factor that informs

       5
        The SSA found that Truitt was “not disabled under [its] rules.” Truitt does not argue,
and the record does not support, that Unum gave any weight to the SSA’s finding.

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                                     No. 12-50142

whether the “reviewing court may give more weight to [the plan administrator’s]
conflict of interest.” Schexnayder, 600 F.3d at 469-71. This precedent does not
support that procedural unreasonableness is an independent basis on which a
district court can find abuse of discretion.6
      The district court did not indicate whether its finding of procedural
unreasonableness was an independent basis for holding that the plan
administrator abused its discretion. The district court erred to the extent that
it treated procedural unreasonableness as anything more than a component of
its analysis of Unum’s conflict.        However, even if the district court only
considered procedural unreasonableness within the framework of its conflict
analysis, it nonetheless erred by imposing a burden on Unum that is absent from
our case law.
(i) Unum’s Duty to Investigate
      The district court first found procedural unreasonableness, in part,
because Unum did not “investigat[e] into the accuracy of the information it
gleaned from the emails.” However, this court’s unanimous en banc decision in
Vega v. Nat’l Life Ins. Servs., Inc. forecloses imposing such a duty to investigate
on a plan administrator. See 188 F.3d at 299. In Vega, the panel decision
imposed a “duty to conduct a good faith, reasonable investigation” on a plan
administrator that had a conflict of interest. Id. at 289. The en banc court
overturned the panel decision, holding that, “when confronted with a denial of
benefits by a conflicted administrator, the district court may not impose a duty
to reasonably investigate on the administrator.” Id. at 299. The en banc court
explained:
      There is no justifiable basis for placing the burden solely on the
      administrator to generate evidence relevant to deciding the claim,


      6
         By contrast, “full and fair review,” discussed above, is an independent basis to
overturn a plan administrator’s denial of benefits. See Lafleur, 563 F.3d at 160.

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                                      No. 12-50142

       which may or may not be available to it, or which may be more
       readily available to the claimant. If the claimant has relevant
       information in his control, it is not only inappropriate but inefficient
       to require the administrator to obtain that information in the
       absence of the claimant’s active cooperation.

       Instead, we focus on whether the record adequately supports the
       administrator’s decision. In many cases, this approach will reach
       the same result as one that focuses on whether the administrator
       has reasonably investigated the claim. The advantage to focusing
       on the adequacy of the record, however, is that it (1) prohibits the
       district court from engaging in additional fact-finding and (2)
       encourages both parties properly to assemble the evidence that best
       supports their case at the administrator’s level.
Id. at 298. This court has reiterated, in cases subsequent to Vega, this principle
“that a conflicted administrator is not under a duty to ‘reasonably investigate’
a claim.” Gooden v. Provident Life & Accident Ins. Co., 250 F.3d 329, 331-33 (5th
Cir. 2001) (finding that the district court erred by imposing a duty to investigate
on the plan administrator); see, e.g., Dramse v. Delta Family-Care Disability &
Survivorship Plan, 269 F. App’x 470, 479 (5th Cir. 2008) (per curiam) (same).
Accordingly, Unum did not violate its duty to investigate because no such duty
exists.7
(ii) Unum’s Duty to Consider the Source of Evidence
       The district court also faulted Unum for not “consider[ing] the source of
the information it considers and weigh[ing] the information accordingly.”
However, the parties do not identify, and we could not find, a case in which we
imposed on a plan administrator an affirmative duty to consider the source of


       7
          We nonetheless note that Unum made an effort to investigate the accuracy of the
emails. First, after Thomas provided the first batch of emails, Unum asked if there were “any
additional emails/information available which might shed additional light regarding this
case?” Second, according to an email from Thomas that Truitt quoted in her July 2011
affidavit, Unum “ke[pt] asking” Thomas to “give[ ] a signed statement or any more
information.” (Emphasis added.) Third, Unum compared the events described in the emails
to Truitt’s claim file.

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                                  No. 12-50142

evidence. The primary case relied on by the district court for the proposition
that a plan administrator has a duty to consider the source of evidence, Pierre
v. Conn. Gen. Life Ins. Co., instead stands for the proposition that, by itself,
hearsay evidence cannot support a plan administrator’s finding unless the
evidence “meet[s] certain indicia of reliability.” See 932 F.2d 1552, 1562-63 (5th
Cir. 1991) (noting that, if “the evidence had been only the . . . hearsay statement
. . . unsupported by corroborating evidence, then the abuse of discretion standard
would permit us to conclude that, because of the witness’s self-serving interests,
the decision to deny benefits based on this statement, without more, would be
beyond the bounds of a reasonable judgment,” but concluding that “the plan
administrator’s decision was based on corroborating evidence,” and therefore
“was not an abuse of discretion”). We reiterate that, in the context of ERISA,
evidence is tested through a probing administrative process, and that, in that
process, issues of inauthenticity, contradiction, unreliability, and bias all may
be pertinent. This probing process contemplates that the plan administrator
must first identify evidence to support its decision to deny benefits. See
Robinson, 443 F.3d at 392-93 (observing that, under 29 U.S.C. § 1133, a plan
administrator must identify “specific reasons” for denying benefits). Then the
claimant may attempt to discredit that evidence by, among other things,
attacking its source. See Vega, 188 F.3d at 298 (“If the claimant has relevant
information in his control, it is not only inappropriate but inefficient to require
the administrator to obtain that information in the absence of the claimant’s
active cooperation.”); Pierre, 932 F.2d at 1554 (“The plaintiffs . . . contested the
accuracy and admissibility of [the] hearsay statements.”). And, finally, the plan
administrator will consider whether, given its asserted deficiencies, the evidence
in question continues to support its decision to deny benefits. See Vega, 188 F.3d
at 298 (“[W]e focus on whether the record adequately supports the
administrator’s decision.”); Pierre, 932 F.3d at 1562-63 (noting that, despite the

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                                       No. 12-50142

claimant’s assertion that the hearsay evidence in question was unreliable, there
was nonetheless sufficient evidence to support the plan administrator’s decision
to deny benefits). As we summarized in Vega, therefore, “[t]here is no justifiable
basis for placing the burden solely on the administrator to generate evidence
relevant to deciding the claim, which may or may not be available to it, or which
may be more readily available to the claimant.” 188 F.3d at 298.
       Unum adhered to this process. Unum first identified evidence to support
its decision to deny Truitt’s benefits, including: the emails showing that Truitt
engaged in activities, including international travel, that were inconsistent with
her asserted disability; the surveillance videos showing that Truitt was able to
drive, walk, and bend, and lift and carry pumpkins, dogs, coolers, and other
items, with no apparent discomfort; and evaluations by physicians and
vocational consultants finding that there was little objective evidence to support
Truitt’s subjective reports of pain and lack of mobility.
       Truitt then provided evidence of her own in rebuttal, including: an
affidavit from Truitt swearing that Thomas was “a computer and hacker expert”
and that he “threaten[ed] to send false information to Unum”; documents
showing that Thomas pled guilty to assaulting Truitt; and expert reports
providing that “[c]onversational emails have no objective measure of reliability
or validity,” and that “[e]mail and password thefts are extremely easy.”8
       Unum then considered, and rejected, Truitt’s rebuttal evidence. After
having two more medical experts review Truitt’s file, Unum concluded that the
surveillance videos, medical records, and emails continued to support its decision



       8
         Truitt maintains that she was unable to rebut Unum’s evidence because “from March
4, 2009 until October 27, 2009, Truitt unsuccessfully sought no less than 13 times to discover
the basis for Unum’s denial and to respond thereto.” As Unum notes, however, “[a] decision
to terminate Truitt’s benefits was not made until October 27, 2009, and she was provided with
a complete copy of her file by November 4, 2009. Truitt’s appeal was requested over four
months later on March 18, 2010 and additional documents were forwarded on April 28, 2010.”

                                             21
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                                  No. 12-50142

to terminate Truitt’s benefits. Unum specifically addressed Truitt’s challenge
to the emails, observing that, “[w]hile you state in your appeal letter that email
information can be manipulated and tampered with you have not demonstrated
that this occurred in this case,” and that “[t]he emails between [Truitt] and Mr.
Thomas not only discuss personal matters but they also contain specific
references to what was happening during [Truitt’s] disability claim.”
         Given this probing process—which included a thorough discourse of
disability—coupled with the deference we owe plan administrators, see Holland,
576 F.3d at 246, we cannot say that Unum’s decision to consider the emails was
an abuse of discretion. Truitt did not introduce any evidence that the emails
were forged or hacked. Cf. Pierre, 932 F.2d at 1563 (noting that the plan
administrator asked the claimant to “submit any evidence” to dispute the
contents of the hearsay, but that it “[r]eceiv[ed] no additional information” from
the claimant).    Moreover, the emails showed that Truitt traveled abroad
extensively, for weeks at a time, yet Truitt did not introduce evidence showing
that, at any point when the emails indicated that she was abroad, she instead
was in the United States. Instead, she seemed to confirm the accuracy of the
emails by appearing to acknowledge that she had been “traveling internationally
for recreation.” The emails also showed: that Truitt was “out working and
riding” to “keep up with 2 acres by [her]self”; that she rode in a “van on the most
winding, curving mountainous 2 lane road for 3 hours”; that she “personally
picked up 88 gallons of trash” in a single weekend; and that she “[h]ad to clean
[her house] for 2 days, total of about 14 hours.” Truitt never denied engaging in
any of these physical activities, but instead submitted an affidavit stating
generally that Thomas “threaten[ed] to send false information to Unum,” and
that “[n]one of the statements Mr. Thomas threatened to make to UNUM are
true.”    Although Truitt submitted expert reports stating, generally, that
“[c]onversational emails have no objective measure of reliability or validity,” and

                                        22
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                                  No. 12-50142

that “[e]mail and password thefts are extremely easily,” the reports did not
identify any specific discrepancies suggesting that the emails were inauthentic
or compromised.
      Two other factors further support the plan administrator’s decision to
credit the emails. First, the emails appeared to be authentic. They spanned
more than 600 pages, and included eTickets and hotel and flight reservations.
Second, the time line presented in the emails was consistent with Truitt’s claim
file. For example, the emails showed that Truitt was traveling in Europe from
August 20, 2005 to September 22, 2005; Truitt’s file showed that, after Unum
scheduled an FCE for September 2, 2005, Truitt told Unum that she would not
be available until September 24, 2005.
      Given that the emails “me[t] certain indicia of reliability”—facial
authenticity, a time line consistent with Truitt’s file, and either acknowledged
by her or only indirectly disavowed—we cannot say that Unum decision to credit
the emails was “beyond the bounds of a reasonable judgement.” Pierre, 932 F.2d
at 1563 (finding that there was an abuse of discretion because “the plan
administrator’s decision was based on corroborating evidence”).
(iii) Substantial Evidence of Disability
      The district court found in the alternative that, “[e]ven if Unum’s
acceptance of the emails were not an abuse of discretion . . . Unum’s conclusion
that the emails establish Truitt is able to perform her own occupation [was]
arbitrary” because Truitt’s travels “fall[ ] somewhat short of” extensive, and
because “even extensive leisure travel cannot be viewed as equivalent to the
rigors of business travel.” These findings are in tension with the district court’s
conclusion that there was substantial evidence to support Unum’s denial of
benefits. These findings also overlook that the plan administrator identified
considerable evidence other than the emails—including, as discussed above,



                                        23
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                                   No. 12-50142

surveillance videos and medical records—to support its decision to terminate
Truitt’s benefits.
      Although we decline to substitute our judgment for that of the plan
administrator, see Schadler, 147 F.3d at 398, we further note that, even
conceding that “each of the material duties of [Truitt’s] regular occupation”
involved extensive travel and lifting files, there was “concrete evidence in the
administrative record that support[ed] the denial of the claim.” Vega, 188 F.3d
at 302.
      First, there was concrete evidence that Truitt could engage in extensive
business travel. The emails showed that Truitt traveled to locales including
England, France, Rome, Venezuela, Guatemala, Jamaica, and Mexico, for weeks
at a time, while claiming to be disabled. The emails also showed that Truitt’s
travel schedule was rigorous. Truitt wrote: that she was “scheduled to do some
heavy[-]duty traveling Aug. through Dec. out of the country”; that she had been
in “6 different airports . . . in the last 48 hours”; that she was “going to be
traveling lots beginning mid[-]April to mid[-]Sept this year”; and that she rode
in “a van on the most winding, curving mountainous 2 lane road for 3 hours.”
Likewise, medical experts found that Truitt could engage in business travel,
noting: that “[t]ravel described in claimant e-mails was consistent with tolerance
of constant sitting”; that “[a] requirement for a chance in posture every 20 to 30
minutes is not needed and is not supported by the travel described in claimant
emails”; and that “recreational air travel trips . . . can be viewed as a direct
measure of her ability to successfully participate in business[-]related air travel.”
      Second, there was concrete evidence that Truitt could lift files. The
surveillance videos showed Truitt: walking, driving, and bending down, and
lifting and carrying boxes, bags, coolers, pumpkins, and a dog. The emails
showed that Truitt: was “out working and riding” to “keep up with 2 acres by
[her]self”; that she “personally picked up 88 gallons of trash” in a single

                                         24
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                                  No. 12-50142

weekend; and that she “[h]ad to clean [her house] for 2 days, total of about 14
hours.” Likewise, medical experts found: that “it is clear that [Truitt] has little
or no physical impairment”; that there was a “severe perception of physical
disability in excess of her physical findings”; and that “it would appear that
[Truitt] would be able to perform the duties of her own occupation.”
      Given that the emails, surveillance videos, and medical records show that
Truitt could complete the “material duties of [her] regular occupation,” there was
“concrete evidence in the administrative record that support[ed] the denial of the
claim.” Vega, 188 F.3d at 302.
B. Unum’s Conflict of Interest
      Because we find that Unum’s factual determination that Truitt was
capable of performing her job duties was not an abuse of discretion, the issue
before us further narrows to whether Unum’s structural conflict of interest,
evaluated against the backdrop of its asserted history of biased claims
administration, supports finding an abuse of discretion.
      The district court found, and the parties do not dispute, that Unum had
a structural conflict of interest because it “both determines whether Truitt is
eligible for benefits and pays for benefits out of its own pocket.” The district
court then gave greater weight to this conflict because “a number of courts . . .
have recognized Unum’s history of biased claims administration.”
      We agree that Unum had a structural conflict of interest. See Glenn, 554
U.S. at 112. However, the district court gave improper weight to this conflict.
See id. at 117. The district court relied on five cases decided between 2007 and
2010, including its own decision in Burton v. Unum Life Ins. Co., 2010 WL
2430767, at *10 (W.D. Tex. June 14, 2010), to show that Unum had a “history of
biased claims administration.” Yet the full Burton decision reveals that “Unum
has—since Glenn—adopted new claims-handling practices” that have helped
cure this history of “biased claims administration.” 2010 WL 2430767, at *11.

                                        25
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                                  No. 12-50142

Indeed, the district court in Burton relied on these “new claims-handling
practices” to conclude that it would “not assume Unum is biased every time it
denies a claim merely because it has a parsimonious claims-granting history.”
Id. Other decisions subsequent to Burton likewise have recognized Unum’s
improved “claims-handling practices.” See, e.g., Daniel v. UnumProvident Corp.,
No. CV-04-1073, 2010 WL 8292157, at *15 (E.D.N.Y. Oct. 27, 2010); Hagopian
v. Johnson Fin. Grp., Inc. Long-Term Disability Plan, No. 09-C-926, 2010 WL
3808666, at *11-12 (E.D. Wis. Sept. 23, 2010).
      We also note, based on our “case-specific” review of the complete
administrative record, that “circumstances” do not “suggest a higher likelihood
that” Unum’s conflict “affected the benefits decision.” Glenn, 554 U.S. at 117; see
Holland, 576 F.3d at 248-49. As discussed in detail above, Unum conducted a
years-long investigation into Truitt’s disability. During that investigation,
Unum consulted with, or reviewed reports by, more than ten medical and
vocational experts, only some of whom were aware of the emails. Unum gave
Truitt opportunities to introduce evidence in support of her disability, and to
rebut its evidence showing that Truitt was not disabled. Unum also appeared
to give due consideration to Truitt’s claim, as evidenced by its initial appellate
decision to restore Truitt’s benefits.
      Given Unum’s “new claims-handling practices,” see Burton, 2010 WL
2430767, at *11, and our “case-specific” finding that Unum gave careful
consideration of Truitt’s claim, see Glenn, 554 U.S. at 117, we find that the
district court improperly emphasized Unum’s structural conflict. See Holland,
576 F.3d at 248-49.
      Even if we were too imbue Unum’s structural conflict with “great
importance,” however, this conflict, which is “but one factor among many that
a reviewing judge must take into account,” does not support finding an abuse of
discretion. See Glenn, 554 U.S. at 116-17. As discussed above, surveillance

                                         26
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                                       No. 12-50142

videos, medical records, and emails all supported that Truitt was not disabled
under the terms of the plan. Therefore, Unum’s structural conflict was “clearly
outweighed by the substantial evidence supporting [Unum’s] decision.” Crowell,
410 F. App’x at 794.
       In sum, we hold: that Unum did not have an affirmative duty either to
investigate the accuracy of the emails or to investigate and further consider their
source; that, instead, Truitt failed to discredit Unum’s proof through the
administrative process; and that, therefore, Unum did not arbitrarily and
capriciously rely on and weigh the emails and other items of evidence relating
to Truitt’s condition. We also hold that the district court gave improper weight
to Unum’s structural conflict, but that, regardless of the weight assigned to the
conflict, Unum did not abuse its discretion.
(2) The Reimbursement of Benefits
       Unum filed a counterclaim seeking reimbursement of more than $1 million
in benefits that it alleged Truitt fraudulently obtained. Applying Texas law, the
district court found that Truitt did not defraud Unum because Unum did not
establish, among other things, that it relied on Truitt’s representations. Unum
argues, and Truitt does not actively dispute, that the district court erred by
applying Texas law.9
       We agree that federal common law, and not Texas law, governs Unum’s
counterclaim. ERISA does not outline how a plan administrator may recover
benefits that it alleges were fraudulently obtained, see 29 U.S.C. § 1132(a)(3),
and “[w]e have consistently held that any hiatus in ERISA’s text must be filled
by application of federal common law rather than the law of any particular



       9
          Truitt did not appeal the district court’s initial ruling that Unum’s counterclaim
qualified as “appropriate equitable relief” under the terms of the plan. Because this issue is
not before us on appeal, and because it is not necessary to our finding, discussed below, that
the district court incorrectly applied Texas law, we decline to address this ruling.

                                             27
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                                  No. 12-50142

state.” Bombardier Aerospace Employee Welfare Benefits Plan v. Ferrer, Poirot
& Wansbrough, 354 F.3d 348, 358-59 (5th Cir. 2003) (finding, in the context of
ERISA, that Texas law did not apply when evaluating “whether a showing of
either actual fraud or unjust enrichment . . . is required before a constructive can
be imposed on . . . disputed funds”); see Provident Life & Accident Ins. Co. v.
Sharpless, 364 F.3d 634, 641 (5th Cir. 2004) (“Federal common law governs
rights and obligations stemming from ERISA-regulated plans[.]”).
      This misapplication of Texas law affected the district court’s analysis. The
district court found that Unum did not satisfy the Texas standard for
“fraudulent misrepresentation,” which requires that “the party acted in reliance
on the representation.” In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex.
2001). In so finding, the district court based its analysis on the Texas rule that
“where a [party] makes [its] own investigation of the facts, or relies on expert
opinion [it] has [itself] obtained, [it] cannot sustain a cause of action based upon
misrepresentation by others.” (Quoting Ehler v. St. Paul Fire & Marine Ins. Co.,
66 F.3d 771, 774 (5th Cir. 1995) (applying Texas law).) The district court found
that Unum “obtained numerous opinions from a variety of consultants and
experts” and thus, “[a]bsent the requisite reliance” on Truitt’s representations,
“Unum’s counterclaim for fraud fails.” Yet this court has not listed reliance as
an element of fraudulent misrepresentation under federal common law. See
Sharpless, 364 F.3d at 641.
      The district court’s erroneous finding that the emails were not credible
also may have affected its analysis. The district court based its finding that
Truitt did not defraud Unum, in part, on its conclusion that “the ‘evidence’ of
falsity Unum relies on is questionable in its reliability.” Although we decline to
address whether the emails establish “evidence of falsity” for the purpose of
fraudulent misrepresentation, we note, as discussed above, that the emails



                                        28
    Case: 12-50142        Document: 00512365109          Page: 29     Date Filed: 09/06/2013



                                       No. 12-50142

appeared facially reliable, presented a time line consistent with Truitt’s claim
file, and were not persuasively discredited by Truitt.
       Given that the district court incorrectly applied Texas law, that the district
court based its analysis on a principle of Texas law that is not controlling under
federal common law, and that the district court’s finding that the emails were
unreliable also may have affected its analysis, we vacate the district court’s
holding that Truitt did not fraudulently obtain benefits, and remand for further
proceedings. See Wildbur v. ARCO Chem. Co., 974 F.2d 631, 644-46 (5th Cir.
1992).10
                                   III. CONCLUSION
       Accordingly, we REVERSE the district court’s holding that Unum
wrongfully denied Truitt benefits, and RENDER judgment for Unum. We
VACATE the district court’s holding that Truitt did not fraudulently obtain
benefits, and REMAND for further proceedings consistent with this opinion. We
also VACATE the district court’s award of attorney’s fees to Truitt, and
REMAND for further proceedings consistent with this opinion.




       10
         Correspondingly, we vacate the district court’s award of attorney’s fees to Truitt, and
remand for further proceedings. See Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149,
2157-59 (2010).

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