The Oklahoma Bar Journal August 2022

that notice within eight months of the qualifying event was timely. Ms. Anglim appealed the ruling to the 8th Circuit on Jan. 4, 2022. 30 It has yet to be heard. The joint IRS and DOL order also provided extensions for ERISA claims, benefits and appeals until 60 days after the end of the national emergency. This led to litigation regarding deadlines in Solze v. United of Omaha Life Ins. Co. 31 In its opinion, the federal District of Colorado determined the plaintiff’s motion to supplement the admin istrative record following denial of her ERISA claim was not covered by the joint order. The court noted the order provided relief for claims and appeals but did not provide extra time to supplement the record. Therefore, her timeline to supple ment the record would remain unchanged, and her motion was untimely. In Oklahoma, arguments relying on the SCAD order’s tolling period or a similar state agency deadline extension have seen success. Courts have broadly interpreted deadline extensions and allowed many cases to extend their deadlines based on the orders, bulletins and notices from various agencies. As one might expect, counsel has also found remarkable success in receiving broad exten sion interpretation when utilizing prior cases that support deadline extensions. For instance, counsel in McLenithan v. Farmers Ins. Co., Inc. utilized two prior federal cases supporting the extension granted by the OID in support of his argu ment that an extension was war ranted in that case, even after the bulletin providing the extension had been rescinded by the OID. 32 In situations where there was a delay or issue due to the pandemic WHAT LITIGATORS NEED TO KNOW

that fell outside the scope of the SCAD orders or related state agency orders, attorneys have utilized arguments that COVID-19 affected their ability to timely file, accomplish or complete an action and requested an extension. This has seen little success. Although the courts have provided consis tent leeway when it comes to the SCAD orders’ tolling period for set deadlines, most courts have rejected generalized arguments that COVID-19 caused delays in meeting deadlines, particularly in the federal courts. For instance, when counsel in G&G Closed Circuit Events, LLC v. Alvarez argued the COVID-19 pandemic generally “slowed progress” on the case, the Western District pointed out that none of the counsel’s argu ments were specifically directed to explaining how he was postponed from meeting the deadline due to the pandemic. 33 Similarly, the Western District stated in Gragg v. Roth , “Plaintiff offers no specific reason why COVID-19 caused this particular docketing error … [S]uch generalized assertions involving COVID-19 do not suffice.” 34 Still, where generalized argu ments of COVID-19 delays have

failed, some attorneys have seen success in making generalized arguments when paired with another delaying factor. A cyber attack paired with the COVID-19 pandemic was satisfactory for the court in Cruz v. Reliance Standard Life Ins. Co. 35 The court determined each excuse was ordinarily insuf ficient on its own. 36 However, the party “suffered a one-two punch consisting of a cyberattack and an international pandemic with real life changes within weeks of each other … Accordingly, the Court will allow the extension.” 37 Other 10th Circuit courts rejected such generalized argu ments as well. The plaintiff in Liming Wu v. Zinke argued she missed a filing deadline because of inadequate medical care and treat ment due to the pandemic. 38 The court specified that her argument was not supported by any expla nation as to how the pandemic caused her to miss the filing dead line. 39 Her argument was rejected, and the court failed to find good cause for her extension of time. 40 In summary, courts are wary of providing deadline exten sions for generalized COVID-19 delays. If one plans to argue for

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THE OKLAHOMA BAR JOURNAL