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(District of New Jersey D.C. 01-cv-04183) - page 24 / 30

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evidentiary privilege.4

Third, many insurers (including HN-NJ) face the additional conflict of handling multiple ERISA benefit plans at once, not to mention other, non-ERISA regulated customers. This situation is far different from that of a corporation whose shareholders have different interests because they hold different amounts or classes of stock. Cf. Garner, 430 F.2d at 1101. In the Garner situation, at least the corporate managers know that they owe their fiduciary obligations to a single, discrete group

  • the shareholders of the corporation. Similarly, although the

trustee of a benefit plan must take care to ensure that all the plan’s beneficiaries receive the benefits which they are owed,

4Health Net argues for a “mutuality of interests” requirement that would preclude application of the fiduciary exception where the interests of the fiduciary and the beneficiaries diverge. Complete mutuality is not a requirement for the fiduciary exception to apply. As early as Garner, courts have recognized that the relevant shareholders or beneficiaries may have interests so divergent that the fiduciary cannot possibly align itself with every interest at once. 430 F.2d at 1101. Nonetheless, the Garner court allowed the fiduciary exception to apply in such a situation. We believe that conflicts of interests must be judged using a sliding scale on a case-by-case basis. This approach is consistent both with our approach to conflicts of interests in other contexts, see Pinto, 214 F.3d at 392, and with our obligation to evaluate evidentiary privileges using the common law method. See FEDERAL RULE OF EVIDENCE 501; Upjohn, 449 U.S. at 396-97.

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