Under the America Invents Act (AIA), parties to an Inter Partes Review (IPR) or Post Grant Review (PGR) may move to join pending IPR or PGR proceedings. See 37 C.F.R. § 42.122 (for IPR), and 37 C.F.R. § 42.222 (for PGR).
(b) Request for joinder. Joinder may be requested by a patent owner or petitioner. Any request for joinder must be filed, as a motion under §42.22, no later than one month after the institution date of any inter partes review for which joinder is requested. The time period set forth in §42.101(b) shall not apply when the petition is accompanied by a request for joinder.
In addition to the efficiencies that come with consolidation of proceedings, a petitioner may use the joinder rules to get around the filing deadline laid out in § 42.101(b). The regulations prevent that party from filing a new IPRs and PGRs more than a year after the date the petitioner was served with a complaint for patent infringement. However, if that petition is filed with a motion to join a pending review proceeding, the petitioner can avoid that deadline. In order to take advantage of this, there must already be a pending proceeding (i.e. an earlier petition must have been timely filed and a instituted).
A motion for joinder should: (1) set forth the reasons why joinder is appropriate; (2) identify any new grounds of unpatentability asserted in the petition; (3) explain what impact (if any) joinder would have on the trial schedule for the existing review; and (4) address specifically how briefing and discovery may be simplified.
Dell Inc. v. Network-1 Soln. Inc., IPR2013-00385, p. 4.
In the Dell case, Dell filed a petition for inter partes review along with a motion for joinder. Both the patent owner and petitioner (Avaya) in the earlier-filed IPR opposed Dell’s motion. Dell’s petition raised no new grounds of unpatentability, and “Dell’s arguments regarding the asserted prior art references . . . appear[ed] to be identical to those made by Avaya.” Id. at 7. Given that there would be no new grounds of unpatentability asserted, the Board allowed Dell’s motion to join. Dell consented to Avaya retaining “control over the proceeding,” but retained the ability to depose both the expert witnesses and patent-owner’s witnesses. Id. at 8-9.
While filing an mirror-image petition allowed Dell to join in the IPR, potential petitioners must weigh whether they are comfortable being tied to someone else’s arguments, particularly given the preclusive effect of IPR on subsequent district court proceedings. 35 USC § 315(e)(2).
Motions for joinder in IPRs have also been allowed where there was not identity of the issues asserted. In Ariosa Diagnostics v. Isis Innovation Ltd., IPR2013-00250, the Board joined a newly-filed petition with a pending proceeding with the same parties. The new petition stated new grounds for invalidation of the patent that was targeted in the first petition.
However, motions for joinder may be denied where they add new claims, not previously at issue, particularly when that would add a new party, additional claim construction, and other issues not raised in the earlier-filed petition. See NetApp, Inc. v. PersonalWeb Tech., LLC, IPR2013-00319, p. 5.
In summary, motions for joinder can serve as an option to conserve resources, potentially add new grounds to a petition, or to join an existing petition as a new party with the same claims. But these petitions still bear a hefty filing fee, and additional ongoing fees.
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The case is based on very common fact patterns where an out-of-network medical provider verified benefits for the patient of an ERISA governed plan, confirming benefits would be paid at the “usual, reasonable and customary rate”. Before performing services the patient assigned the provider rights under the plan to “pursue claims for benefits, statutory penalties, [and] breach of fiduciary duty ….” The provider then performed services expecting a certain level of reimbursement. When the Plan failed/refused to pay the expected amount, the medical provider appealed for, among other things, the SPD and documents, rate tables and methodologies used to support her payment.
“Dr. Griffin challenges the district court’s ruling that she did not state a claim for unpaid benefits. She argues that she adequately plead that the plan covered the medical treatment she provided T.R. and that she did not need to cite in her complaint a plan provision establishing coverage at the amount she billed. We agree. “[P]laintiffs alleging claims under 29 U.S.C.§ 1132(a)(1)(B) for plan benefits need not necessarily identify the specific language of every plan provision at issue to survive a motion to dismiss under Rule 12(b)(6).” Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga, Inc., 892 F.3d 719, 729 (5th Cir. 2018).
The court goes on to explain, that the Plan’s argument, “Requiring that Dr. Griffin to allege provisions to support something that was undisputed, -the existence of coverage-was error.” The court further noted that because Dr. Griffin was paid “something“, it was plausible the services were covered.
“Finally, Dr. Griffin argues that as T.R.’s assignee, she is a beneficiary of the plan, eligible for statutory penalties based on Central States’s failure to provide the documents she requested within 30 days. See 29 U.S.C. §§ 1024(b)(4), 1132(c)(1). Central States takes the position, supported by one citation to a district-court decision, that an assignee does not step into a beneficiary’s shoes for the purpose of enforcing statutory penalties. See Elite Ctr. for Minimally Invasive Surgery, LLC v. Health Care Serv. Corp., 221 F. Supp. 3d 853, 860 (S.D. Tex. 2016). Thus, Central States concludes, it could not be liable for not timely providing documents to Dr. Griffin.
But in Neuma, Inc. v. AMP, Inc., we remanded to the district court for a determination of whether penalties should be awarded to an assignee under section 1132(c)(1), thus assuming that assignees could seek penalties. 259 F.3d 864, 878–79 (7th Cir. 2001). Central States’s position is inconsistent with our prior precedent and is contrary to the purposes of a plenary assignment of rights under the plan. ERISA defines “beneficiary” as “a person designated by a participant … who is or may become entitled to a benefit [under an employee benefit plan].” 29 U.S.C. § 1002(8). An assignee designated to receive benefits is considered a beneficiary and can sue for unpaid benefits under section 1132(a)(1)(B)—something the plan does not dispute. See Kennedy v. Conn. Gen. Life Ins. Co., 924 F.2d 698, 700 (7th Cir. 1991). Bringing that suit (or an administrative appeal) requires access to information about the plan and its payment calculations— here, how Central States determined the usual, reasonable, and customary rate. Mondry, 557 F.3d at 808; see also Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 118 (1989) (disclosure ensures that “the individual participant knows exactly where he stands with respect to the plan” (citing H.R.Rep. No. 93–533, p. 11 (1973), U.S.Code Cong. & Admin. News 1978, p. 4649)).
It follows that Dr. Griffin also must be a beneficiary able to sue when she is denied requested information.
Central States argued that even if Dr. Griffin is a beneficiary, she still did not state a claim for statutory damages because it sent her the summary plan description, and ERISA did not require it to provide either Data iSight’s fee schedules and rate tables or its contract with Blue Cross Blue Shield. The court shot down the Plans arguments regarding the disclosure of documents as “meritless“, based on the fact the Plan ultimately provided Dr. Griffin the SPD, albeit 6 months late, and because the Plan readily admitted that it used Data iSight’s figures to calculate the payment which constituted, in part, the Plan’s “pricing methodology” and the basis for the payment.
FAQ B-5: For purposes of furnishing relevant documents to a claimant, what kind of disclosure is required to demonstrate compliance with the administrative processes and safeguards required to ensure and verify appropriately consistent decision making in making the benefit determination?
What documents will be required to be disclosed will depend on the particular processes and safeguards that a plan has established and maintains to ensure and verify appropriately consistent decision making. See 65 FR at 70252… the department anticipates that claimants who request this disclosure will be provided with what the plan actually used, in the case of the specific claim denial, to satisfy this requirement. The plan could, for example, provide the specific plan rules or guidelines governing the application of specific protocols, criteria, rate tables, fee schedules, etc. to claims like the claim at issue, or the specific checklist or cross-checking document that served to affirm that the plan rules or guidelines were appropriately applied to the claimant’s claim.
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The claimant appeared at oral argument before the board as a self-represented party.
The respondents were represented by Patrick Battersby, Jr., Esq., Montstream & May, L.L.P., P.O. Box 1087, Glastonbury, CT 06033-6087.
This Petition for Review from the September 1, 2017 Finding and Dismissal of Stephen M. Morelli, the Commissioner acting for the Fifth District, was heard March 23, 2018 before a Compensation Review Board panel consisting of Commissioners Jodi Murray Gregg, Charles F. Senich and Daniel E. Dilzer.
JODI MURRAY GREGG, COMMISSIONER. The claimant appeals from the September 1, 2017 Finding and Dismissal of Commissioner Stephen M. Morelli, acting on behalf of the Fifth District. In that Finding and Dismissal, the trial commissioner considered whether the respondents should be assessed a penalty for late payment of an award by stipulation pursuant to General Statutes § 31-303. The trial commissioner denied and dismissed the claimant’s request to impose the late payment penalty provision of General Statutes § 31-303.
The relevant facts in this matter are as follows. The claimant-appellant [hereinafter “claimant”] alleged a compensable injury while employed by the respondent, Mastec, Inc. Mastec, Inc., insured its workers’ compensation insurance liability through its insurer, ESIS Northeast. The respondents-appellees [hereinafter “respondents”] entered into a full and final stipulation agreement with the claimant. The sum to be paid to the claimant for the resolution of the claim by stipulation was $40,000.
On October 7, 2016, in the course of drafting the stipulation agreement, the respondents sent an e-mail to the claimant requesting his mailing address. By reply e-mail on that same date, the claimant responded to the respondents’ request and provided an address of 8103 NW 75th Ave, Pompano Beach, FL 33321.
On November 7, 2016, Commissioner Scott Barton approved the executed full and final stipulation of the parties. The address listed for the claimant was the address provided by the claimant in his October 7, 2016 e-mail to the respondents, i. e., 8103 N.W. 75th Avenue, Pompano Beach, FL 33321.
On December 1, 2016, respondents sent the stipulation documents and a check dated December 1, 2016 in the amount of $40,000. The items were sent via FedEx Express to the claimant at the updated address. The claimant received and cashed the check dated December 1, 2016.
Payments agreed to under a voluntary agreement shall commence on or before the twentieth day from the date of agreement.... Any employer who fails to pay within the prescribed time limitations of this section shall pay a penalty for each late payment, in the amount of twenty per cent of such payment, in addition to any other interest or penalty imposed pursuant to the provisions of this chapter.
The claimant argues that because the stipulation documents and check (i.e., payment), were not received until more than twenty (20) days after the November 7, 2016 approval by Commissioner Barton, he is entitled to the 20 (twenty) percent late-payment fee. At the formal hearing, the respondents put into evidence, inter alia: the November 8, 2016 certified letter and copy of the settlement check, Respondents’ Exhibit 3; the certified mail receipt for the mailing of November 8, 2016 letter and copy of the settlement check, Respondents’ Exhibit 4; and a United States Postal Service [hereinafter “U.S.P.S.”] tracking sheet for the certified mailing of the November 8, 2016 letter and check, Respondents’ Exhibit 5. The U.S.P.S. tracking sheet reflects that the items were received by the U.S.P.S. facility on November 8, 2016 and ultimately “Delivered, Left with Individual” on November 12, 2016 at 7:53 p.m. in Fort Lauderdale, FL 33321. Findings, ¶ 9; Respondents’ Exhibit 5.
We note that the claimant appeared as a self-represented party in the proceedings before the trial commissioner. Likewise, the claimant filed this appeal and proceeded as a self-represented party. As this board has stated previously, “it is the policy of Connecticut courts and this board to accommodate pro se claimants as much as possible by liberally construing procedural rules where doing so does not interfere with the rights of other parties.” Dwyer v. Insperity Services, L.P., 6083 CRB-6-16-3 (March 23, 2017). See also Sellers v. Sellers Garage, Inc., 80 Conn. App. 15, 20 (2003), n.2; Harrison v. New Country Motor Cars of Greenwich, Inc., 5329 CRB-7-08-3 (December 1, 2009) and Walter v. Bridgeport, 5092 CRB-4-06-5 (May 16, 2007), citing Ferrin v. Glen Orne Leasing/Webster Trucking, 4802 CRB8-04-4 (March 28, 2005).
The claimant filed a timely Petition for Review and a “free form” document that we have construed to be the claimant’s Reasons for Appeal. We can glean from the assertions in that document only that the claimant continues to maintain that the respondents did not comply with the time requirements in General Statutes § 31-303 and the trier erred in concluding that they did.
Before the payment of the additional interest provision is triggered in General Statutes § 31-303 C.G.S., the first prong of the statute must be met. That prong states, “[p]ayments agreed to under a voluntary agreement shall commence on or before the twentieth day from the date of agreement....” (Emphasis ours.) In the proceedings below, the trial commissioner was asked to determine if the respondents commenced payment before the twentieth day from November 7, 2016.
In this board’s consideration of Marchand v. The Phineas Corp., d/b/a Sunrise Group, 5687 CRB-2-11-10 (September 18, 2012) and Melillo v. Bayer Corp., 5490 CRB-3-09-8 (September 15, 2010), we held that the respondents’ initiation of payment within the statutory time frame did not trigger the penalty provision of General Statutes § 31-303. See Collier v. Logistec USA, Inc., 6059 CRB-4-15-12 (October 4, 2016), n.5. Thus, in the context of a pure legal question, the respondents’ initiation of payment met the commencement requirement of the statute.
Having determined that the trial commissioner applied the correct legal standard, the only remaining question is whether the trial commissioner erred in his factual findings. “The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Additionally, this board does not engage in de novo review. See Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 196 (1999), cert. denied, 251 Conn. 929 (1999) and Story v. Woodbury, 159 Conn. App. 631, 636 (2015). The trial commissioner is the “sole arbiter of the weight of the evidence” proffered. Story, supra, 637.
We note that the claimant did not file a motion to correct. As noted previously herein we do accord some relief from a strict adherence to the technical aspects of appellate process for those who are self-represented. However, without filing a motion to correct, the claimant has failed to properly preserve a challenge to the facts found. Samaoya v. Gallagher, 102 Conn. App. 670, 675 (2007). Our review of this matter fails to find any of legal basis for overturning the trier’s factual findings. The facts and the conclusions must stand.
We therefore affirm the September 1, 2017 Finding and Dismissal of the Commissioner acting for the Fifth District.
Commissioners Charles F. Senich and Daniel E. Dilzer concur.
12. Respondent-employer’s attorney again followed up with claimant via emails dated November 16, 2016, and November 17, 2016, to see if claimant had received the settlement check.
14.	On Tuesday, November 22, 2016, respondent-employer’s attorney sent an email to claimant again following up to see if claimant had received the settlement check.