:: Seventh Circuit Hands Down Another Post-Glenn “Tie Breaker” Decision

This is not the type of case in which the Glenn conflict-of-interest factor plays an important role. As we noted, the Supreme Court in Glenn instructed that the presence of a conflict will “act as a tiebreaker when the other factors are closely balanced . . . .” Glenn, 128 S. Ct. at 2351. In other words, “[w]hen the case is borderline . . . the inherent conflict of interest that exists in so many of these situations can push it over the edge–towards a finding of capriciousness.” Jenkins, 564 F.3d at 861-62. This is not a borderline case; in light of Liberty’s consideration of no fewer than thirteen expert opinions, it is not possible to say that Liberty’s decision was even close to “downright unreasonable.” Fischer v. Liberty Life Assur. Co., 2009 U.S. App. LEXIS 17226 (7th Cir.) (August 4, 2009)

Rather than examination all factors in “combination”,  several courts have emphasized the “tie breaker” reference in Glenn, and only view a conflict of interest as significant in close cases. The Sixth Circuit is a good exemplar the “combination” approach wherein the Court looks at each action of the conflicted fiduciary in terms of whether the fiduciary’s conduct, taken as a whole, reflects evidence of bias