I have been keeping quiet with my fingers crossed for several months now, knowing that my friend and expert ERISA attorney, Tybe Ann Brett, Esq. had filed an application to serve an Amended Answer and Counterclaim in U.S. Airways v. McCutchen.  The Counterclaim alleges, among other things, Breach of Fiduciary Duty by the plan, and statutory violations for Failure to Disclose, after remand from the United States Supreme Court.

Today, nearly one year after the U.S. Supreme Court’s unfavorable ruling, I am pleased to report that the United District Court for the Western District of Pennsylvania granted Mr. McCutchen’s request, as seen in the Memorandum Decision available for download here.

Stating, in relevant part:

“Under normal circumstances, this Court would be loath to allow amendment of the pleadings and a reopening of discovery nearly six (6) years after commencement of the case. Here, however, the Court is troubled by US Airways’ untimely production of the Plan documents and its disingenuous contention that Defendants failed to request the Plan document. Because the Plan document was never at issue before this Court, Defendant’s did not waive its right to defend based upon the terms therein. Moreover, any prejudice to US Airways at this point of the litigation is a direct result of its failures, whether deliberate or not, during the discovery stage of litigation.”

Although it is early in the next round, it looks like a victory for claimants.