Tobacco surcharge suits and the retroactive refund theory

It’s really interesting how this all ends up boiling down to a retroactive penalty.

At issue is that former smokers have to be tobacco free for a period before they qualify for a non-smoker rate. The argument is that they are non-smokers during that waiting period and should be refunded their smoking surcharge upon qualification.

It’s a very nuanced argument, but it doesn’t have the fatal flaw that many ERISA H&W suits have so far with a standing issue (See Knudsen v. Met Life) because this is a clear concrete issue that the court can remedy.

Only time will tell if the courts decide that this is an unlawful discrimination act or a plan sponso’s broad discretion to determine eligibility under the plan.

Campbell’s is no stranger to ERISA litigation either. They’ve been here before.

Nobody will say we don’t live in interesting times!