Rebecca Peterson-Fisher 

One of Rebecca Peterson-Fisher’s career goals as an attorney is to “bring cases that advance social justice,” she said.

On that front, her most exciting current case is a class action against Aetna filed in April that accuses the company of discriminating against certain LGBTQ couples in how many of its health plans cover infertility treatments. She is co-lead counsel on the case along with attorneys from the National Women’s Law Center and Altshuler Berzon LLP. Berton v. Aetna Inc., 4:23-cv-01849 (N.D. Cal., April 17, 2023).

They represent a woman covered by the Aetna-designed and administered health plan from her wife’s employer. The plan covers infertility treatments for heterosexual couples who have tried and failed to become pregnant for a year.

But for couples like the plaintiff and her wife, the plan only pays for artificial insemination treatments after the couple proves they already tried the treatments on their own 12 times. Intrauterine insemination treatments are “arduous and expensive,” the complaint states, and a dozen attempts would “require substantial out-of-pocket costs and take far longer than six or 12 months to complete.”

Only then, Peterson-Fisher said, could the couple obtain health insurance coverage for a 13th or 14th attempt. “But nobody does 13 or 14 rounds, so it’s really illusory.” In fact, she added, many doctors would recommend against more than six attempts.

The plaintiff’s Aetna health plan doesn’t cover in vitro fertilization, “so they’re just shut out of any coverage for fertility treatments even though it’s obvious that they can’t conceive together,” Peterson-Fisher said. The new class action seeks injunctive relief for a national class action because Aetna’s infertility policy applies to many Aetna policies across the country.

That policy “intentionally discriminates against [the plaintiff] and class members based on sexual orientation and gender identity,” according to the complaint. Peterson-Fisher said the litigation will address “the liability of third-party administrators for discriminatory design, marketing and administration of health care plans” under the Affordable Care Act.

Peterson-Fisher takes pride in representing plaintiffs with all sorts of jobs and levels of employment from high-level executives to hourly employees. For instance, she recently reached separate prelitigation settlements for two directors of publicly traded companies. One alleged discrimination on the basis of sex, race and national origin; the other alleged disability discrimination and failure to accommodate his worsening PTSD.

At the other end of the economic scale, she and co-counsel also recently settled litigation for a class of Subway employees. The defendant was a company that owned several LLCs that each owned several Subway franchises. The workers were assigned shifts at assorted stores but were denied overtime because they technically worked the shifts for separate employers. Villanueva v. Dech Foods, CGC-16-555202 (S.F. Super. Ct., filed Nov. 17, 2016).

“Our task was to use the joint employer and single integrated enterprise doctrines to argue that, in fact, they were all employed by the same single integrated enterprise,” she said. “There were many layers of the onion in that case.”

— Don DeBenedictis