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United States District Court, C.D. California.


CV 18-9434 DSF (AGRx)

Decided: May 25, 2021

Richard D. Williams, Mina Hakakian, Williams Law Firm PC, Los Angeles, CA, for Plaintiff. Matthew Gregory Kleiner, Jordan T. Golden, Gordon Rees Scully Mansukhani LLP, San Diego, CA, for Defendant Aetna Life Insurance Company.

Order Addressing Failure to Exhaust Administrative Remedies, Contractual Limitations, and Anti-Assignment Defenses


Defendant Aetna Life Insurance Company contends three issues defeat Plaintiff Brand Tarzana Surgical Institute, Inc.'s claims: (1) Brand's failure to exhaust administrative remedies under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 (ERISA); (2) contractual limitations in the relevant health insurance plans; and (3) Brand's lack of standing because of anti-assignment provisions in the plans. Dkts. 49 (Br.), 59 (Aetna Suppl. Br.). Brand disagrees. Dkt. 61 (Resp.). The Court deems these issues appropriate for decision without oral argument. See Fed. R. Civ. P. 78; Local Rule 7-15.

Aetna's arguments all fail. Aetna's notice of adverse benefit determinations was inadequate, excusing any exhaustion requirement. For the same reason, no contractual limit bars Brand's suit. And Brand has standing to sue because Aetna waived the anti-assignment clauses in the plans.


Brand operates a surgery center that provided healthcare services to patients covered under various health benefit plans. Dkt. 1 (Compl.) ¶¶ 2, 12. “As a condition to the provision of services by Brand,” each patient “signed an agreement assigning his or her ERISA Plan rights and benefits to Brand in their entirety.” Id. ¶ 15. Aetna is a health benefits corporation and the claims administrator of the plans at issue. Id. ¶¶ 3, 6.

Brand brings a single count under ERISA to recover benefits allegedly owed based on numerous claims for benefits under various health plans.


A. Exhaustion of Administrative Remedies

“ERISA itself does not require a participant or beneficiary to exhaust administrative remedies in order to bring an action under § 502 of ERISA.” Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 626 (9th Cir. 2008) (citing 29 U.S.C. § 1132). But “based on both the text of ERISA and its legislative history,” the Ninth Circuit “long ago concluded that ‘federal courts have the authority to enforce the exhaustion requirement in suits under ERISA, and that as a matter of sound policy they should usually do so.’ ” Id. (quoting Amato v. Bernard, 618 F.2d 559, 568 (9th Cir. 1980)). The Ninth Circuit has “consistently held that before bringing suit under § 502, an ERISA plaintiff claiming a denial of benefits ‘must avail himself or herself of a plan's own internal review procedures before bringing suit in federal court.’ ” Id. (quoting Diaz v. United Agr. Emp. Welfare Ben. Plan & Tr., 50 F.3d 1478, 1483 (9th Cir. 1995)).

“However, when an employee benefits plan fails to establish or follow ‘reasonable claims procedures’ consistent with the requirements of ERISA, a claimant need not exhaust because his claims will be deemed exhausted.” Barboza v. Cal. Ass'n of Pro. Firefighters, 651 F.3d 1073, 1076 (9th Cir. 2011) (citing 29 C.F.R. § 2560.503-1(1)); (remanding where an employee benefits plan failed to satisfy ERISA's procedural requirements); Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 223 (2d Cir. 2006) (holding a plaintiff's ERISA claim should have been deemed exhausted under section 2560.503-1(l ) and noting that “substantial compliance” with ERISA's requirements is insufficient).

B. Contractual Limitations

A contractual limitations provision “qualifies as a circumstance ‘which may result in disqualification, ineligibility, or denial or loss of benefits.’ ” Scharff v. Raytheon Co. Short Term Disability Plan, 581 F.3d 899, 906 (9th Cir. 2009) (quoting 29 U.S.C. § 1022(b)). “[A]n ERISA cause of action accrues either at the time benefits are actually denied, or when the insured has reason to know that the claim has been denied.” Wetzel v. Lou Ehlers Cadillac Grp. Long Term Disability Ins. Program, 222 F.3d 643, 649 (9th Cir. 2000) (all citations omitted).

C. Waiver and Equitable Estoppel

Waiver is “the intentional relinquishment of a known right.” Beverly Oaks Physicians Surgical Ctr., LLC v. Blue Cross & Blue Shield of Illinois, 983 F.3d 435, 440 (9th Cir. 2020) (quoting Gordon v. Deloitte & Touche LLP Grp. Long Term Disability Plan, 749 F.3d 746, 752 (9th Cir. 2014)) (citing Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1559 (9th Cir. 1991)) (“Waiver occurs when ‘a party intentionally relinquishes a right, or when that party's acts are so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.’ ”). Waiver “may be implied through conduct manifesting an intention to waive.” Gould v. Corinthian Colleges, Inc., 192 Cal. App. 4th 1176, 1179, 120 Cal.Rptr.3d 943 (2011).

Equitable estoppel applies “where the conduct of one side has induced the other to take such a position that it would be injured if the first should be permitted to repudiate its acts.” DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd., 30 Cal. App. 4th 54, 59, 35 Cal.Rptr.2d 515 (1994). “Under this theory of relief, a plaintiff must allege the traditional equitable estoppel requirements: ‘(1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former's conduct to his injury.’ ” Beverly Oaks, 983 F.3d at 442 (quoting Gabriel v. Alaska Elec. Pension Fund, 773 F.3d 945, 955 (9th Cir. 2014)). “In the ERISA context, the plaintiff must allege three additional requirements: ‘(1) extraordinary circumstances; (2) that the provisions of the plan at issue were ambiguous such that reasonable persons could disagree as to their meaning or effect; and (3) that the representations made about the plan were an interpretation of the plan, not an amendment or modification of the plan.’ ” Id. (quoting Gabriel, 773 F.3d at 957).

“It is fundamental that the burden of proving estoppel or waiver rests upon the party in whose favor those doctrines are claimed to inure.” Gaunt v. Prudential Ins. Co. of America, 255 Cal. App. 2d 18, 23, 62 Cal.Rptr. 624 (1967).


A. Exhaustion of Administrative Remedies

Aetna argues Brand's claims are barred because Brand did not follow the appeal procedure laid out in the Member Explanations of Benefits (EOBs) for its denied claims. Br. at 3-4; Aetna Suppl. Br. at 4-6. The procedure is not the same for all plans, but Aetna asserts all Member EOBs require members to exhaust appeals before suing. See id.

Brand is not bound by the Member EOBs. Aetna's argument fails because it did not comply with ERISA's notice requirements. Aetna sent the conforming 1 notices to the members, not to Brand. Brand was not required to exhaust administrative remedies of which it never had proper notice.

First, Brand did not comply with the notice requirements for adverse benefit determinations. ERISA requires every plan to establish claim procedures and provides procedural requirements that must be followed. 29 U.S.C. § 1133. It requires plans to “provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant.” Id. § 1133(1).2 It also requires plans to “afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.” Id. § 1133(2). The regulations require that an initial notice of a claim denial contain certain items, including the reason for the denial and a “description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary.” 29 C.F.R. § 2560.503-1(g).

Section 1133 requires Aetna to send the notice of adverse benefit determinations to the participant or beneficiary claiming benefits under the plan. 29 U.S.C. § 1133 (“every employee benefit plan shall – (1) provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant” (emphasis added)).

Here, Brand notified Aetna that Brand was the claimant. Before Aetna sent the EOBs and determined whether the claims were accepted or rejected, Brand sent Aetna a claim form with a box marked “Y” for “ASG BEN,” which informed Aetna that Brand was the assignee under the plans. Dkt. 1-5. The members assigned their right to benefits to Brand and Brand was the party requesting benefits under the plan. See, e.g., Compl. ¶ 19; dkt 54-2 (medical records of a party for whom Brand requested reimbursement sent by Brand to Aetna). As the participant or beneficiary seeking benefits under the plan, Brand was entitled to receive notice that complied with the requirements set forth in 29 C.F.R. § 2560.503-1(g). The only documents sent to Brand, the Provider EOBs, did not comply with those requirements. See, e.g., dkt. 54-1; 29 C.F.R. § 2560.503-1(g).

Second, Aetna did not adequately notify Brand of its appeal procedures. ERISA requires a plan's procedures to include provisions governing the appeal of adverse benefit determinations. 29 C.F.R. § 2560.503-1(b). ERISA regulations mandate that plans “establish and maintain a procedure by which a claimant shall have a reasonable opportunity to appeal an adverse benefit determination to an appropriate named fiduciary of the plan, and under which there will be a full and fair review of the claim and the adverse benefit determination.” 29 C.F.R. § 2560.503-1(h)(1). A plan's claims procedures will not be deemed to provide a claimant with a reasonable opportunity for a full and fair review unless the procedures provide 180 days to appeal following receipt of an adverse benefit determination and provide for a review “that does not afford deference to the initial adverse benefit determination” conducted by a fiduciary of the plan. 29 C.F.R. § 2560.503-1(h)(3)(i)(ii). The procedures must also: (1) provide claimants an opportunity to submit additional information, (2) provide that a claimant shall be provided on request and free of charge reasonable access to and copies of all information relevant to its claim, and (3) provide a review that considers all information submitted. 29 C.F.R. § 2560.503-1(h)(2).

The only documents Aetna sent to Brand were the Provider EOBs. Aetna admits those EOBs did not outline appeal procedures, asserting providers who have not been assigned benefits under a plan do not have a contractual obligation to appeal. Dkt. 68 (Reply) at 11. Brand did not need to appeal the determinations, therefore, because the only notice it received did not mention any requirement to appeal.

Because the Member EOBs were not sent to Brand, Brand did not receive notice of the denials or its requirement to appeal. The Ninth Circuit has not ruled on this issue directly. But the Court agrees with other circuits: inadequate notice excuses a party from its obligations to exhaust its administrative remedies. The Court declines to fault a party for failing to act when it was not told action was required. See Bourgeois v. Pension Plan for Emps. of Santa Fe Int'l Corps., 215 F.3d 475, 482 (5th Cir. 2000) (holding where an employer's failure to give an employee adequate claims procedure information caused the employee to fail to exhaust his administrative remedies, his claim should be remanded to the plan administrator); Strom v. Siegel Fenchel & Peddy P.C. Profit Sharing Plan, 497 F.3d 234, 246 (2d Cir. 2007) (stating the denial of the claim failed to meet the notice requirements of section 1133 to adequately set forth the reasons for denial, the plan's review procedures and rights for further appeal, so the plan administrators were precluded from asserting a failure to exhaust administrative remedies); Cromer-Tyler v. Teitel, 294 F. App'x 504, 508 (11th Cir. 2008) (finding exhaustion excused because the plan administrator's letter informing the participant that her benefits under the plan were terminated was inadequate; it did not contain a specific reason for the determination, did not refer to specific plan provisions, and did not describe procedures necessary to review the claim).

Aetna makes several other unconvincing arguments. Aetna argues the summary plan descriptions gave proper notice. Br. at 13-14. But the summary plan description did not notify Brand its claims were denied with the requirements ERISA demands. Aetna was required not just to have appeals procedures in place, but to properly communicate that procedure, and the claim denial, to Brand. See Kreml v. Diamond Shamrock Corp., 701 F. Supp. 1400, 1404 (N.D. Ill. 1988) (finding that, although an employer maintained an appeal procedure, it failed to notify the plaintiff of her right to appeal the denial of her claim and so was foreclosed from arguing plaintiff did not exhaust her internal plan remedies).

Aetna also asserts Brand at most put Aetna on notice of the right to receive payment benefits, and not the assignment of the right to sue. Reply at 10. But the claim forms communicated the members had assigned their right to benefits, and therefore the related rights, including the right to sue. See Beverly Oaks, 983 F.3d at 438, 440 n.7 (9th Cir. 2020) (holding an identical claim form transmitted notice of an assignment of benefits). As the claimant and assignee of benefits, Brand was entitled to receive notice.

Aetna further claims the exhaustion of remedies is consistent with ERISA's background, structure, legislative history, and policy goals. Id. at 10-11. The Court agrees administrative exhaustion is consistent with the goals of ERISA. Further, a sophisticated party like Brand, which had appealed adverse benefit determinations in the past, dkts. 49-8-11, could have obtained the Member EOBs and understood the appeals process. But the requirements of ERISA aim to have communications received and “understood by the average plan participant.” 29 U.S.C. § 1022(a). The Court is bound by those requirements. “[W]hen an employee benefits plan fails to establish or to follow ‘reasonable claims procedures’ consistent with the requirements of ERISA, a claimant need not exhaust because his claims will be deemed exhausted.” Barboza, 651 F.3d at 1076.

Aetna did not follow ERISA's claim procedures. Brand's claims are deemed exhausted. Aetna's request to dismiss Brand's claims on this ground is DENIED.

B. Contractual Limitations

Aetna argues some claims are untimely because some of the plans limit the time period in which one must seek recovery, and Brand's lawsuit is outside those time periods. Br. at 14-17; Aetna Suppl. Br. at 16-17. However, given the inadequacies of the adverse benefit notifications discussed above, there was no final decision on those claims. The contractual limitations therefore do not apply.

White v. Jacobs Engineering Group Long Term Disability Benefit Plan, 896 F.2d 344, 350 (9th Cir. 1989) supports this conclusion. In White, the Ninth Circuit held that “[w]hen a benefits termination notice fails to explain the proper steps for appeal, the plan's time bar is not triggered.” Id. White addressed a contractual time limit for submitting an administrative appeal. In reaching its decision, the Ninth Circuit reasoned that an administrator should not be permitted to deter a claimant from filing a timely appeal “by sending vague and inadequate appeal notices, withholding information claimants need to appeal effectively.” Id. at 351.

The Court finds the reasoning in White applies to contractual time limits for filing a civil action in addition to submitting an administrative appeal. The Code of Federal Regulations requires notification of the right to file a civil action, and an administrator's withholding of relevant information would similarly deter a claimant from filing a timely action. 29 C.F.R. § 2560.503-1(g)(4). Brand is not barred by the contractual limitation in the plans because Aetna sent inadequate adverse benefit notifications. See Bourgeois, 215 F.3d at 482 (holding where an employer's failure to give an employee adequate claims procedure information caused the employee to fail to exhaust his administrative remedies and extinguished the employee's time to apply for benefits, his claim should be remanded to the plan administrator and the employer was estopped from arguing the employee's claim was time-barred); Bilyeu v. Morgan Stanley Long Term Disability Plan, 683 F.3d 1083, 1089 (9th Cir. 2012) (holding a district court abused its discretion by finding a claim was time-barred because the letter outlining administrative remedies and time to sue was ambiguous and “[a] communication from a claims administrator to a plan participant should clearly apprise her of her rights and obligations under the plan”); Chuck v. Hewlett Packard Co., 455 F.3d 1026 (9th Cir. 2006) (finding the failure to comply with ERISA's notification procedures was a “highly significant factor” for determining whether the statutory limitations period began running).

Aetna cites an inapposite case, Heimeshoff v. Hartford Life & Accident Insurance Co., 571 U.S. 99, 108, 134 S.Ct. 604, 187 L.Ed.2d 529 (2013). Br. at 15. In Heimeshoff there was no suggestion that the claimant had not received proper notice or that the event triggering accrual had not occurred or could not be determined. Here, Aetna did not give adequate notice, and there was no way for Brand to determine when the contractual time period would be triggered.

In the absence of a contractual limitations period, the statute of limitations for an ERISA action to recover benefits is four years. N. Cal. Retail Clerks Unions & Food Emps. Joint Pension Tr. Fund v. Jumbo Markets, Inc., 906 F.2d 1371, 1372 (9th Cir. 1990). Brand filed its lawsuit within four years of the denial of the claims at issue. See Br. at 16-17; Aetna Suppl. Br. at 16-17. Aetna's request to dismiss Brand's claims on this ground is DENIED.

C. Waiver and Equitable Estoppel

Aetna waived the anti-assignment clauses in the plans. Dkt. 67 (Brand Suppl. Br.) at 3-4. Brand adequately notified Aetna of the assignment of benefits before Aetna denied or partially denied the claims, but Aetna never mentioned anti-assignment as a reason for denial until the lawsuit was filed. Aetna waived the defense and may not raise it now.

“ ‘Anti-assignment clauses in ERISA health plans are valid and enforceable.’ Yet, a plan administrator can waive the right to enforce an anti-assignment provision.” Beverly Oaks, 983 F.3d at 440 (citations omitted) (quoting and citing Spinedex Physical Therapy USA Inc. v. United Healthcare of Ariz., Inc., 770 F.3d 1282, 1296-97 (9th Cir. 2014)) (describing the Spinedex holding as “concluding that the defendant-claims administrator did not raise the anti-assignment provision during the administrative claim process because ‘there [wa]s no evidence that [the claims administrator] was aware, or should have been aware, during the administrative process that [the plaintiff-medical provider] was acting as its patients' assignee’ ” (alterations in original)).

“When making a claim determination under ERISA, ‘an administrator may not hold in reserve a known or reasonably knowable reason for denying a claim, and give that reason for the first time when the claimant challenges a benefits denial in court.’ ” Id. (quoting Spinedex, 770 F.3d at 1296 and Harlick v. Blue Shield of Cal., 686 F.3d 699, 719 (9th Cir. 2012)).

To demonstrate Aetna waived the anti-assignment clauses in the plans, Brand must show Aetna “was aware or should have been aware, during the administrative [claim] process that [Brand] was acting as its patients' assignee.” Id. (first alteration in original) (citing Spinedex, 770 F.3d at 1297).

Beverly Oaks is dispositive of the anti-assignment issues raised here and establishes waiver. The cases are factually identical. As in Beverly Oaks, Brand would have patients sign an agreement assigning the right to collect benefits under their insurance policies. Beverly Oaks, 983 F.3d at 438; Compl. ¶ 15 (“As a condition to the provision of services by Brand, each Plan member or dependent signed an agreement assigning his or her ERISA Plan rights and benefits to Brand in their entirety.”); dkt. 1-4 at 4 (providing a partial exemplar of an assignment document Brand used); dkt. 61-2 at 3 (same).

Brand would then contact Aetna “to determine benefit coverage and eligibility for out-of-network benefits,” just as in Beverly Oaks. Beverly Oaks, 983 F.3d at 438; Compl. ¶ 16 (describing the process of calling Aetna and discussing potential coverage, typically 50-100% as in Beverly Oaks, with an authorized claim administrator). After the medical procedure, Beverly Oaks would submit a claim to Blue Cross on behalf of the patient and indicate on the form “that it sought to collect ERISA benefits via a patient assignment of benefits” by selecting “Y” in box 53, “indicating that Beverly Oaks asserted its claim via a patient assignment of benefits.” Beverly Oaks, 983 F.3d at 438; 440 n.7. Brand followed an identical procedure. Resp. at 7. Blue Cross “processed the claim form, denied in full or underpaid Beverly Oaks' billed charges, and at no time during the administrative claim process did Blue Cross raise the anti-assignment provision as a basis to deny benefits.” Beverly Oaks, 983 F.3d at 440-41. The same occurred here. Compl. ¶¶ 22-24; Resp. at 5.

On identical facts, the Ninth Circuit found Beverly Oaks adequately pleaded waiver.3 The circuit stated, “[t]hese allegations show plausibly that Blue Cross should have at least been aware that Beverly Oaks sought to collect plan benefits through a patient assignment because Beverly Oaks marked the appropriate box on the claim form indicating that it was pursuing plan benefits through a patient assignment.” Beverly Oaks, 983 F.3d at 441.

The Ninth Circuit further found the allegations “show plausibly that Blue Cross' silence and payment was ‘so inconsistent with an intent to enforce’ the anti-assignment clause as to ‘induce a reasonable belief that the right to enforce the clause had been relinquished.’ Further, that Blue Cross held in reserve a known or reasonably knowable reason for denying a claim, and gave that reason for the first time when Beverly Oaks challenged a benefits denial in court' supports the waiver allegations.” Id. (cleaned up). The facts here are identical, and this reasoning therefore applies. Aetna has waived the anti-assignment provisions in the plans.4 ,5

Aetna argues Beverly Oaks is distinguishable because the scope of the assignments to Brand does not encompass the right to sue. But as Aetna notes, “there is no evidence that Brand provided Aetna with a copy of an assignment signed by the member (with the exception of the six letters submitted on appeal).” Reply at 3. In Beverly Oaks, the Ninth Circuit stated the defendant had notice because the “Y” in box 53 was checked, not because of the assignment signed by the member. Beverly Oaks, 983 F.3d at 438; 440 n.7. The scope of the assignments, of which Aetna had no knowledge, cannot bear on whether it “was aware, or should have been aware, during the administrative process that [Brand] was acting as its patients' assignee.’ ” Spinedex, 770 F.3d at 1296-97 (9th Cir. 2014). The “Y” in box 53 put Aetna on notice, and therefore any difference in the scope of the assignments in Beverly Oaks and here is irrelevant.

Further, the members did assign Brand the right to sue. The partial exemplar attached to Brand's response states: “For the professional or medical expense benefits allowable and otherwise payable to me under my current insurance policy as payment toward the total charges for the services rendered. This is a direct assignment of my right and benefits under this policy.” Dkt. 61-2 at 3.6 Contrary to Aetna's claim, the assignment of “my right and benefits under this policy” reasonably encompasses the right to sue based on a denial of benefits. The exemplar attached to the complaint states the member “irrevocably assign[s] to [Brand] all of the patient rights afforded to me under ERISA and Department of Labor guidelines, benefits, privileges, protections, claims and any other interests of any kind whatsoever, without limitation, including ․ rights to sue.” Dkt. 1-4 at 4 (emphasis added). The assignments are not different enough from those in Beverly Oaks to warrant a different result.7

The Court need not address Aetna's other arguments because they are foreclosed by Beverly Oaks.

Aetna's request to dismiss Brand's claims on the basis of the anti-assignment clauses is DENIED.


Because Aetna sent Brand inadequate notices of adverse benefit determinations, Brand was not required to exhaust its administrative remedies and was not bound by the contractual limitations in the plans. Aetna waived its right to assert any anti-assignment clause as a defense. Aetna's request to dismiss Brand's claims is DENIED.



1.   Brand does not argue that the Member EOBs fail to meet ERISA's requirements, so the Court assumes they do.

2.   Section 502 allows an ERISA plan participant or beneficiary to bring an action in district court “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B).

3.   Although Beverly Oaks was decided on a motion to dismiss, the circuit found the facts, if they established the allegations in the complaint, would support a finding of waiver.

4.   The Court need not address the equitable estoppel argument as it finds the anti-assignment clauses are waived.

5.   The Court agrees, however, Aetna Suppl. Br. at 7, that Brand must submit proof of valid assignments to bring claims. Brand is “still searching” for the assignment language for patient I. The Court declines to find an implied assignment simply because Brand asserted an assignment in its claim forms. See Davidowitz v. Delta Dental Plan, 946 F.2d 1476, 1477 (9th Cir. 1991) (noting a health care provider with a valid assignment from a beneficiary may bring a civil action for non-payment); Aviation W. Charters, Inc. v. United Healthcare Ins. Co., No. CV-14-00338-PHX-NVW, 2014 WL 5814232 at *3, 2014 U.S. Dist. LEXIS 158859 at *8 (D. Ariz. 2014) (“Plaintiff does not have a cause of action under ERISA because it is not a plan participant, beneficiary, or fiduciary and does not have a valid assignment of benefits from the Beneficiary under the Plan.”). Brand may pursue claims for patient I only if it furnishes written proof of assignment to Aetna.

6.   It appears that the Court was not provided with the entire assignment, or the reference to its location was too unclear to allow the Court to locate it. The Court's ruling may be revisited if review of the complete exemplar indicates that is appropriate.

7.   Aetna's unopposed request for judicial notice of the assignment in Beverly Oaks, dkt. 68-5, is GRANTED.

Dale S. Fischer, United States District Judge

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