Benefits & ERISA Law
Boston ERISA Law Blog 
Timely and useful information concerning current legal developments in ERISA and insurance coverage.
Post Frequency: 0.7/day Last Entry: November 05, 2009 at 11:49:07 Recent Entries: 202
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The Case of the Billion Dollar Typo
Posted on November 05, 2009Well, I'm getting ready for a trial, so I certainly don't have time to read a 105 page ruling on reformation of ERISA governed benefit plans, and I suspect you don't either. Fortunately for both of us, here's a great one page article on a new major decision finding that a scrivener's error - one worth $1...
Hecker, Fees and A Broad Public Market
Posted on November 02, 2009To me, intellectually, all roads lead to Hecker right now, as the sort of touchstone around which all thinking about fiduciary obligations and the amounts of fees charged in 401(k) plans must revolve. Hecker, of course, found not only that a broad range of offering meant that marketplace discipline guaranteed appropriate fees, but also that this could be determined at the motion to dismiss stage...
Divorce Me for My Money, Or Love, Continental Style
Posted on October 26, 2009This is one of the great ERISA stories of all time - its like something out of a Boston Legal episode. I am speaking, of course, of the case, detailed here, of the Continental pilots who, concerned that the retirement plan may go belly up long before they retire, divorced their wives, executed QDROs transferring the retirement benefit to their now ex-spouses, after which the ex-wives took out lump sum payments, as the plan allowed...
Harmon on Delegation of Fiduciary Duties in the First Circuit
Posted on October 22, 2009Just briefly, as I have been traveling and haven't reviewed the case myself, Roy Harmon on his excellent Health Plan Law blog, analyzes a decision out of the First Circuit on the manner in which a fiduciary can properly delegate its authority; the decision found that excessive formality wasn't mandated...
Time to Retire the 401(k)?
Posted on October 15, 2009Many years ago, I remember hearing the comment that you knew Nixon was done for when Johnny Carson turned against him in his monologue, because Carson was a perfect proxy - some hip writer today (or maybe just some writer today trying to be hip) would instead call him an avatar - for the thinking of mainstream America at the time...
Preemption, the Supreme Court, and Job Losses
Posted on October 13, 2009I had two disparate items that I wanted to post on, one of which I didn't really think had anything to do with the subject matters of this blog but that, nonetheless, was too cool a graphic not to pass on. Sitting here this morning, though, I figured out how to hook them together, so here goes...
Conkright, Discretion and the Supreme Court
Posted on October 05, 2009Here's a nice little story on Conkright, and the new Supreme Court session. As the article explains in a nutshell: The issue in Conkright vs. Frommert involves how much deference a court must give to an ERISA plan administrator's interpretation of the terms of the plan...
A Personal Reflection on Iqbal
Posted on September 24, 2009When it comes to the law, I am conservative by nature, in the 'if it ain't broke, don't fix it' meaning of the word. I am not speaking here of substantive legal rules, or case outcomes, and how to view them, but instead of the bread and butter elements of a litigator's life, evidentiary rules, rules of civil procedure, pleading requirements, burdens of proof, and the like...
You Say Potato, I Say Potahtoe: Structural Conflicts of Interest After Metropolitan Life
Posted on September 22, 2009Geez, I certainly don't mean anything by it, but in its application by the courts, this new 'structural conflict of interest' rule imposed by the Supreme Court in Metropolitan Life v. Glenn seems to be just as open to variation from circuit to circuit as was the case with the highly variegated rules across the circuits on this issue that predated it...
What Goes Up Just Keeps Going Up - Health Costs and Employer Mandates
Posted on September 16, 2009For a long while, I have felt like a lone voice or (to mix my metaphors) at least the skunk at the garden party, when I have criticized employer mandates and, even more so, the Massachusetts Health Care Reform Act. As I have frequently discussed in various posts, the problem with these statutes is that they don't target the real problem in the provision of health insurance by employers, which is cost - that is what is driving employers to reduce or not provide such insurance to their employees...
QDROs Down the Drainville?
Posted on September 09, 2009I don't think anyone has made as sustained a study of the law of QDROs as Albert Feuer. Albert has a new piece he has authored on the Drainville decision, which I discussed here, in which Albert concurs that it is both well reasoned and accurate in treating substantial compliance with the statutory QDRO requirements as sufficient...
It Depends on What the Meaning of the Word Prevail Is
Posted on August 11, 2009I have been swamped for awhile, but have wanted to post on this case, by Judge Young of the U.S. District Court here, for almost as long, and I want to get it up today while I have a few minutes of daylight, because I think it is a very important opinion for practitioners...
Doing the QDRO Shuffle
Posted on July 28, 2009Here's a great opinion, out of the United States District Court for the District of Rhode Island, on QDROs, their statutory basis, their purpose, and how they should be structured. Notably, the court weighs in in a very sensible manner on the never ending question of whether, under ERISA, the divorce decree at issue must comply exactly with the requirements imposed by ERISA to qualify as a QDRO or whether instead, as in horse shoes, close enough counts...
You Say Securities, I Say ERISA
Posted on July 22, 2009I have to admit I have found the Workplace Prof blog tough sledding since the site's founding blogger, Paul Secunda, took retirement from the site, apparently to spend more time in the snow in Wisconsin. Without Paul, the blog has trended heavily towards labor law and lacks the type of frequent, insightful commentary about ERISA that was a hallmark of the Secunda regime...
Excessive Fee Litigation and the Small Plan
Posted on July 21, 2009It has become a given in any talk on 401(k) plans and fiduciary liability that I give these days - my comment that, when the market was always going up, up, up, no one cared that they might have made 15% instead of 14% but for some unresolved problem with a plan's structure, but with the market going down, down, down, anything and everything even allegedly wrong with a plan is going to get sued over...
On the Patentability of Computer-Generated Inventions
Posted on July 15, 2009So, so, so very far behind. Its even creeped onto the blog, and in particular into our serialization of The Genie In the Machine. Oh, well, better late than never. Here is the last and final installment of our semi-serialization of Robert Plotkin's book on automated inventing, and its impact on patent law...
On Coverage for Financial Investigations, and an Echo from the Past
Posted on July 10, 2009Little time to blog today - plus I still have to get up the latest chapter of our on-going serialization of Robert Plotkin's book, The Genie in the Machine - but I did want to pass along, with a couple of brief comments, this excellent article on the question of whether there is coverage for governmental investigations under directors and officer or professional liability insurance...
Do I Need a Coverage Lawyer?
Posted on July 08, 2009I have written, in various blog posts, highly detailed, rational and analytical explanations of why parties to an insurance coverage dispute should retain experienced coverage counsel to represent them; I have given long, detailed, argumentative explanations of the same point in a number of seminars...
If the Plan Fits, You Must Acquit (Or at Least Preempt)
Posted on July 07, 2009Here's an interesting case for you. Here in the First Circuit, we have plenty of case law making clear that theories of liability that serve as alternative enforcement mechanisms to those set forth in ERISA itself are preempted. What about the circumstance where the cause of action is not necessarily an alternative enforcement method but would nonetheless require the fact finder to reference the terms of an ERISA governed employee benefit plan to determine whether or not the plaintiff's state law cause of action is viable? Is there a point at which the state law claim becomes too remote from the existence of the ERISA governed employee benefit plan for it to be preempted? Well sure, but it is only at a great remove from the employee benefit plan itself...
American Conference Institute's ERISA Litigation Conference
Posted on July 01, 2009Here at this blog, we are all about being a modern media company, as you can tell from all the pop-ups and the banner ads you encounter when you come here to read the latest posts. Synergy, and book serialization and cross-marketing and all those other business page buzzwords - that's what we're about here...
If Wishes Were Horses - Or Patents - Or Something Like That
Posted on June 29, 2009Oops. I was so busy Friday litigating two different ERISA cases that I plum forgot to post the latest episode of our semi-serialization of Robert Plotkin's book on automated inventing and its impact on patent law, The Genie in the Machine: How Computer-Automated Inventing is Revolutionizing Law and Business...
On Preemption of Pay or Play Acts and the Supreme Court
Posted on June 25, 2009File this, I suppose, in the department of inevitable events - lawyers representing the restaurant industry have filed to have the Supreme Court review the Ninth Circuit ruling finding that the San Francisco pay or play ordinance is not preempted by ERISA...
The Impact of Automated Inventing on Patent Law - Round 2
Posted on June 19, 2009Last week, we commenced our (quasi-) serialization of Robert Plotkin's book, The Genie in the Machine: How Computer-Automated Inventing is Revolutionizing Law and Business. Here, as promised, is part 2 in the series. Automated Inventing: The Challenge for Patent Law As I explained in my previous entry, increasingly powerful computer software is being used to automate the process of inventing...
Commenting on Commenting
Posted on June 18, 2009. . . is what my colleague Eric Brodie calls this article, in which I am interviewed about the pros and cons of legal blogging.
How Computer-Automated Inventing is Revolutionizing Law and Business
Posted on June 12, 2009I have always maintained a digressions section of the blog, down in the corner of the left hand side of the blog, for the purpose of allowing me to talk about areas of my practice - like intellectual property litigation - other than those listed in the title of the blog; its also there to give me space for subjects that are of interest to me but of only tangential relation to the subjects of either the blog or my practice, such as the financial underpinnings of the Massachusetts Health Care Reform Act...
The Massachusetts Health Care Reform Act as a National Model . . .
Posted on June 05, 2009Maybe of what not to do. I couldn't let this go by without noting it - he has a Nobel after all and I, well, I have a sixth man award from a high school basketball team. Paul Krugman on health care reform: Without an effective public option, the Obama health care reform will be simply a national version of the health care reform in Massachusetts: a system that is a lot better than nothing but has done little to address the fundamental problem of a fragmented system, and as a result has done little to control rising health care costs...
Maniloff, Sotomayor and Insurance Coverage Law
Posted on May 29, 2009Just too funny not to post this today, even though this was supposed to be a post-free Friday while I finish up a brief. Randy Maniloff of White and Williams has done a (mock) thorough piece of opposition research into the new Supreme Court nominee and discovered, somewhat apparently to his shock, that her rulings reflect a consistent trend of finding in favor of insurers, rather than insureds, on coverage and bad faith issues that have come before her...
The Massachusetts Health Care Reform Act: Demonstrating that ERISA Preemption is Health Care Reform's Best Friend
Posted on May 28, 2009Well, I have argued more than once on these electronic pages that ERISA preemption, rather than being the whipping boy of choice for people who advocate state level health insurance mandates, should be understood as a key element in bringing about any type of effective change to the health insurance system...
More ERISA Blogging for Those of You Who Can't Get Enough
Posted on May 26, 2009Kevin O'Keefe, the lawyer turned blogging evangelist behind the company that hosts this blog, told me when I was picking a topic for my blog that I should choose a subject where there was plentiful source material to work from on a day in, day out basis...
Thoughts on Costs and Fees in 401(k) Plans
Posted on May 20, 2009In my last post, I mentioned a seminar I gave recently on insurance coverage issues and commented on one of the themes of my presentation. Another theme I emphasized in that talk was the fact that modern insurance coverage law is basically 20 years old, with its fountainhead being the development of the law of insurance coverage to account for the complexities and size of the asbestos exposures that confronted much of American industry at that point; from that development of the case law would come further refinement and expansion of the relevant doctrines as the courts, insurance companies and industry subsequently struggled to allocate financial responsibility for the surge in environmental clean up actions...
Corporate Insurance Programs: Thinking Critically Before You Buy
Posted on May 18, 2009I gave a seminar recently to a group of in-house counsel on insurance coverage, and the theme of my talk was the need to go beyond - or at least look behind - standard insurance packages to instead tailor the insurance program to the specific needs and exposures of the particular company in question...
Comments on First Circuit Law Post-Glenn
Posted on May 13, 2009I thought I would post some thoughts and comments on the First Circuit's pronouncement of its law after Glenn, before too much more time goes by, rather than waiting for a window of time that would allow me to write a much longer post on it. Some things that sit too long get stale, and comments on new, noteworthy opinions fall in that category, so here are my thoughts...
Hmm, Maybe I was Right?
Posted on May 11, 2009I have been accused of being something of a troglodyte for not whole heartedly embracing the Massachusetts Health Care Reform act, including because it puts the cart before the horse in failing to recognize (and address) the fact that rapidly rising health care costs are the real problem driving accessibility and also because the statute is preempted, which matters because the problems it is trying to address can only really be targeted successfully in the long run on a national basis rather than on this type of state by state ad hoc approach, which Congress long ago precluded by means of ERISA preemption...
The Supreme Court, Suffolk Superior Court and Ed Zelinsky, All Commenting on the Breadth of ERISA Preemption
Posted on May 01, 2009Two interesting things worth passing along this week on the topic of ERISA preemption, both reinforcing its breadth. The first is this well-written analysis of preemption out of the state trial court in Massachusetts, unusual for the reason that, normally, if ERISA preemption exists, the case ends up by original or removal jurisdiction in federal court; you seldom see a state trial judge write extensively on this subject as a result...
Hecker, InsideCounsel and Defensive Plan Building
Posted on April 23, 2009Hecker is the gift that keeps on giving, for either an academic or a blogger (or perhaps a blogger with an academic frame of mind). It presents a wealth of issues warranting further consideration, running from those commented on in my prior posts on the Seventh Circuit's decision, to one I haven't even passed on yet, namely the propriety from a jurisprudential perspective of using every trick in the trade, as the Seventh Circuit did, to go outside the complaint for extensive evidence that would allow the case to be decided on a motion to dismiss...
Other People's Money, Cumis Counsel and the Tripartite Relationship
Posted on April 22, 2009We have talked before on this blog about the tripartite relationship among insurers, the defense counsel they appoint, and the insured; this is a topic of wide interest to all sides in the insurer/insured relationship, and, in fact, my handy dandy two minute guide to the relationship's issues is among my most read pages...
Looking at Fiduciary Performance from the Vantage Point of a Plan Participant
Posted on April 17, 2009I had dinner recently with the brothers Alfred, Mike and Ryan, two of the co-founders of BrightScope, and much of the conversation centered around the question of transitioning the management and analysis of 401(k) plans from a practice oriented perspective to a plan participant oriented one...
Hecker and the Development of the Law on the 404(c) Defense
Posted on April 14, 2009One of the Seventh Circuit's most interesting tricks in its recent decision in Hecker was the extraordinary breadth it gave to the 404(c) defense. This was an aspect of the decision that raised a lot of hackles, and I noted in my own post on the case that I doubted this was the last word on the subject and that it would be interesting to see how the case law developed as other courts tackled this question...
LTD Litigation: What the Right Hand Takes, the Left Hand Gives Back
Posted on April 09, 2009Judge Gertner of the federal district court in Massachusetts issued a pair of bookend decisions in long term disability cases a few days back that present an interesting contrast with regard to an issue that troubles many critics of the arbitrary and capricious standard, namely the extent to which an administrator deciding a claim for benefits can favor the opinions of its own reviewing physicians over the opinions of the participant/claimant's treating physicians...
Surprisingly, the Stock Market Decline is Leading to Litigation . . .
Posted on April 07, 2009You know what a dog bites man story is, right? Well, here's one, though a well-written one. This piece on CFO.com surveys the collateral damage from the Wall Street collapse, with a focus on its severe impact on 401(k) plans and the corresponding increase in fiduciary duty litigation...
Pension Fiduciaries in the Hot Seat - What to Avoid and How to React if Sued
Posted on April 06, 2009I and a cast of thousands will be speaking at a webinar on April 14th on 'Pension Fiduciaries in the Hot Seat - What to Avoid and How to React if Sued,' put on by Pension Governance, Inc. Well, its not really a cast of thousands, just me and four very experienced worthies, who know so much about the subject that they seem like a cast of thousands...
How Much Information Is Enough to Decide A Breach of Fiduciary Duty Lawsuit?
Posted on March 31, 2009Is a motion to dismiss a good tool for disposing of major breach of fiduciary duty lawsuits? In essence, should it be treated as a mini-summary judgment proceeding, that tests the sufficiency of the case's theories against, not the detailed facts of a specific case, but instead against the world as a whole as understood by the court? Or are these cases instead ones that are better decided by - and both litigants and the development of the case law better served by - a decision on the actual factual merits of a case, after drilling down into the conduct in question? The former scenario is, in essence, the route taken by the court in Hecker, and Kevin LaCroix provides another example in his post yesterday, on the dismissal of the breach of fiduciary duty lawsuit in the Huntington Bancshares ERISA litigation...
Deconstructing the Language of Insurance Policies
Posted on March 24, 2009I have been thinking a lot recently about the development and history of particular aspects of insurance policy language, and how they reflect the continuing efforts of drafters to take language that can often be imprecise and refine it to more accurately reinforce what the insurer actually intends to take on as a covered risk...
Asking the Seventh Circuit to Revisit Hecker
Posted on March 18, 2009I was going to post on something else today - namely the scope of contractual obligation clauses in insurance policies - but my Google Alert pulled in something else that I wanted to pass along first instead, namely, this post by Paul Secunda at Marquette on an amicus brief filed by several law professors asking the Seventh Circuit to reconsider Hecker v...
The Seventh Circuit Puts a Spin on Discretionary Review
Posted on March 16, 2009There is an interesting twist to a recent Seventh Circuit decision, Leger v. Tribune Company Long Term Disability Plan. The decision starts out as an attempt by the participant to resuscitate her benefits claim by invoking Glenn v. MetLife and asserting that a structural conflict of interest existed warranting an alteration to the standard of review...
Notes on Hecker v Deere
Posted on February 26, 2009The Seventh Circuit’s opinion in Hecker v Deere is interesting in a number of ways, and on a number of levels. I won’t detail the facts of the case in depth here, but the case turns on the question of the plan sponsor’s and service providers’ potential fiduciary liability for allegedly high fees in the mutual funds offered in a 401(k) plan and the limited degree of disclosure provided to participants about the fees...
Content Wants to be Free!!!
Posted on February 25, 2009Well, maybe. Either way, the nice folks at LawyersUSA are making their article on Kennedy v. DuPont, in which I am quoted and that I discussed here, available free online. You can find it here. Thanks, LawyersUSA!
Shining a BrightScope on Heckler v. John Deere
Posted on February 24, 2009Still parceling out items of interest that have stacked up on my desk in the last week or so. Among the things I still haven’t gotten to, I have to admit, is a careful reading of the Seventh Circuit’s recent decision in Heckler v John Deere, but I will, shortly...
A Pile of Things on Kennedy v. DuPont
Posted on February 23, 2009A lot of interesting things have piled up in my in-box during the past week and a half or so, when I have not had time to blog. I still think they are interesting, even after a few days of having them underfoot, so I am going to try to parcel out as many of them as possible over the course of this week, until I have either run out of them or out of time, whichever comes first...
Do People Who Are Told the Truth Sue?
Posted on February 11, 2009I love this story. A couple of weeks ago I blogged about BrightScope’s launch, and pointed out my view that more information generally means less litigation. I learned thereafter that some think that is a counter-intuitive thought; presumably, people who believe that think that if you cover up problems and don’t let people know what’s going on, they may not find out and thus may not sue you...
Wrongs That Can't Be Remedied: ERISA Preemption and Limited Statutory Remedies
Posted on February 06, 2009Paul Secunda, the law professor formerly known as the workplace prof, has a new law review article out on the “wrong without a remedy” aspect of ERISA litigation, which is the fact that the broad scope of preemption can combine with the limited range of remedies available under ERISA in a way that makes some alleged wrongs involving employee benefit plans simply not redressable...
Some Notes on Fair Share Acts and the Economics of Health Insurance
Posted on February 03, 2009I have argued many times on these - virtual - pages that fair share acts, and their backers’ obsession with trying to circumvent ERISA preemption, puts the cart before the horse, in that they focus on putting more health insurance obligations on employers without addressing the real reasons that employers struggle to provide health insurance, which is its ever expanding cost...
Bunch v. W.R. Grace: What a Breach of Fiduciary Duty Doesn't Look Like
Posted on February 02, 2009I cannot do better by anybody interested in fiduciary obligations under ERISA than to recommend to you the First Circuit’s decision the other day in Bunch v. W.R. Grace & Co.. For those of you not familiar with the lower court proceedings in that case, what was at issue is whether it was a breach of fiduciary duty to sell company stock, rather than maintain it as an investment option, after retaining outside advisors to investigate the stock’s value, potential and appropriateness as an investment option...
BrightScope and 401(k)s
Posted on January 30, 2009Holy Transparency, Batman! If you like Zillow, and you have a 401(k) plan, have I got a website for you. BrightScope has now publicly launched its rating website, in which you plug in a particular company’s name and the site then provides you with a colorful, graphic presentation of that particular plan’s performance and structure in comparison to certain benchmarks and comparable companies...
Fun With Bill and Liv
Posted on January 27, 2009Sorry, couldn’t resist - Bill being William Kennedy and Liv Kennedy being the named beneficiary in yesterday’s Supreme Court opinion, Kennedy v. Plan Administrator for DuPont Savings and Investment Plan. After reading the opinion itself last night, I thought I would add a couple of comments to my initial impressions of the opinion, which I discussed in yesterday’s post...
ERISA Litigation: An Update from the Front Lines
Posted on January 26, 2009When John Calipari was the basketball coach at the University of Massachusetts, he was famous for saying that he would play anyone, anywhere, at any time. I like to say - and did in my seminar a couple weeks ago covering current trends in ERISA litigation - that I will likewise speak to anyone, anywhere, at any time about this subject...
Kennedy v. Plan Administrator for DuPont Savings and Investment Plan
Posted on January 26, 2009Here’s the early word on the Supreme Court’s ruling in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, which revolved around the issue of divorce decrees, the QDRO requirements of ERISA, and whether - in the absence of a valid QDRO - a plan administrator can rightly just pay proceeds to an ex-spouse of a plan participant if the participant never removed the ex as a beneficiary...
The Trend Lines in ERISA Litigation
Posted on January 15, 2009I like when you sort of hit the zeitgeist in things you write and talk about. I mentioned in a post last week that I would be presenting a seminar to the ASPPA Benefits Council of New England on current trends in ERISA litigation, and I presented the seminar yesterday...
Itzoe and Reish on the Fee Disclosure Regulations
Posted on January 14, 2009By the way, I really like Josh Itzoe’s post here on the new DOL investment fee disclosure rules, which consists of a well-done interview by e-mail with Los Angeles lawyer Fred Reish. I have noted before that the interview style blog post is the most difficult to do well, and Josh pulls it off with panache...
The Perfect 401(k) Plan?
Posted on January 13, 2009What would a 401(k) plan look like if you could create the fantasy football version (fantasy 401(k)?) for your company? Well, thanks to the good folks at Brightscope (I have only the vaguest idea at this point who they are and what they do, but I am already enjoying their new blog), you don’t have to wonder anymore - it would look something like this one right here, offered by the Saudi Arabian Oil Company...
Talkin' ERISA Litigation Trends
Posted on January 07, 2009I will be presenting a seminar next week, on Thursday January 14th, to the ASPPA Benefits Council of New England, entitled “ERISA Litigation: An Update from the Front Lines.” After three full days of outlining my talk, I now actually have a pretty good idea of what I am going to say; the talk will blend the latest developments nationally and at the Supreme Court in ERISA law with ERISA litigation trends and realities in the First Circuit...
Disclosure of Information: Where Securities Law and ERISA Diverge
Posted on January 05, 2009Cool, what a nice treat to me for the first real workday of the New Year. I have always wanted a reason to link to the Harvard Law School Corporate Governance blog because, well, it just sounds so impressive (that plus it’s a really good read on all things corporate), and one of their contributors handed me the opportunity over the weekend...
Adapting to Glenn in the Second Circuit
Posted on December 30, 2008I noticed in my statistics package for the blog that this past Thursday, Christmas Day, had the lowest readership of this blog in months. Come on people, ERISA is for everyday, not just workdays! And here’s why. The day before Christmas, the Second Circuit issued its ruling adjusting its case law on benefit determinations where a structural conflict of interest exists to accord with the Supreme Court’s recent ruling in MetLife v...
More Evidence that Including Company Stock in a Retirement Plan May Not Be Worth the Litigation Risk
Posted on December 29, 2008A few months back, I discussed the broad conception of damages in stock drop type cases articulated in the case of Bendaoud, which essentially found that damages exist if the participant could have done better in an alternative investment option. This concept makes it fairly easy to construct a damages theory in 401(k) and ESOP cases that will survive the scrutiny of a motion to dismiss, and that can support a significant award of damages...
Blogging on Fixing the 401(k)
Posted on December 24, 2008Sometimes the Zeitgeist is hard to read, other times it hits you smack in the face with a two by four. As we move towards the end of the year (the business year anyway, as we all know how much work actually gets done between Christmas eve and New Year’s day), the constant drumbeat of news drives home one unassailable fact, which is that ignorance cannot possibly be bliss when it comes to investing, particularly with regard to pension and 401(k) funds...
Randy Maniloff's Top Ten Insurance Coverage Decisions for Dummies and the Rest of Us
Posted on December 15, 2008Some bloggers blog their way to greatness, other bloggers have greatness thrust upon them. For some reason, that line popped into my head when Randy Maniloff’s always entertaining article on the top ten insurance coverage decisions of the past year appeared, like manna from heaven, in my in-box yesterday, providing one weary blogger - i...
The Tribune Bankruptcy and Breach of Fiduciary Duty Litigation Over its ESOP
Posted on December 11, 2008I had a whole line of things I was planning to blog on, but events keep overtaking them. Today, that is the story of the Tribune bankruptcy, and its effect, detailed here, on the Tribune ESOP. We have all been watching the booming industry in filing ERISA breach of fiduciary duty cases based on the latest events in the market with, for the most part, some skepticism, as we try to deduce which ones are legitimate and whether some reflect just a piling on in the pursuit of settlements and accompanying legal fees...
On Education and Repetition
Posted on December 08, 2008Well, I think Roy Harmon and I (mostly Roy, actually) just previewed for you what this webinar plans to cover, the ethical and privilege traps involved in providing legal counsel to ERISA governed plans and their administrators. Still - luckily for people like me and Roy who blog on these subjects and for the presenters of the seminar - there is literally always more to be said about these types of topics...
Intellectual Property Exclusions and Trends in Insurance Coverage Law in Massachusetts
Posted on December 08, 2008At this point, I think we are entering a new era in Massachusetts law concerning insurance coverage, one different than any I have seen before in my decades of litigating such cases in the Commonwealth. In this brave new world, policies are apparently applied as written, and insureds cannot just claim ambiguities or that they had expectations - somehow reasonable despite being contrary to the actual wording of the policy - of coverage somehow different than that actually provided...
On the Scope of the Attorney Client Privilege In ERISA Litigation
Posted on December 04, 2008This really isn’t an instance of logrolling (or blogrolling, as the case may be), I promise, even though Roy Harmon’s post that I am passing along here refers to me and my electronic discovery post a few times; the subject of Roy’s post got my attention and led me to read it long before I realized the peripheral role I played in it...
Electronic Discovery and the Federal Rules
Posted on December 03, 2008Here is an excellent article on electronic discovery under the federal rules, and efforts to reduce the expense of this process by protecting against inadvertent waiver of privilege. As long time readers know, I have frequently criticized the structure and format of the federal rules, and their application by the courts, concerning electronic discovery, for the extraordinary burden and expense they impose on litigants...
Back Again at the Crossroads of Securities Law and ERISA
Posted on November 26, 2008Here is a case from a week or so ago that I haven’t had time to post on yet, but which warranted a little more discussion than suited inclusion in Monday’s Thanksgiving Week potpourri post. In his latest ruling in In re Boston Scientific Corporation ERISA Litigation, Judge Tauro of the United States District Court for the District of Massachusetts delves in depth into the question of whether and when putative class representatives satisfy the requirements to represent a class in an ERISA breach of fiduciary duty case involving alleged securities law violations by the defendants...
GM and the Viability of Pension Plans
Posted on November 25, 2008Well, I am not quite sure what to say, or perhaps more accurately where to start, with regard to this article in the New York Times today on the surprising financial health - at least for now - of the GM pension plan. As the company otherwise founders, the article describes years of responsible, forward thinking stewardship of the pension plan’s funds, including with regard to investments of the plan’s assets...
A Thanksgiving Week Feast
Posted on November 24, 2008Some of the more prolific bloggers manage to be prolific by posting short notes on various topics of interest written by others, which isn’t my usual style. But over the past week or so I have managed to back up a good stack of things that I have wanted to talk about in detail, but haven’t had the time to comment on...
The Longer Term Impact of the Last Several Weeks on Pension Plans
Posted on November 19, 2008There’s an old saying that nothing focuses the mind like an execution date; all trial lawyers have heard judges rephrase it as nothing focuses the mind so much on settlement as an imminent trial date. I thought of this saying when I read this article, in which Susan Mangiero of Pension Governance, whose Cassandra like warnings that companies need to focus on improving quality and other aspects of retirement plans - including their handling of hard to value assets - predates the utter disaster that has befallen such plans in the past several weeks, discusses the fact that, having now fallen into the abyss, pension plans and fiduciaries must focus their efforts on how to respond to the market collapse, which may have a larger impact on the pension plans than the market collapse itself...
Excessive Fees in 401(k) Plans: Its What You Do, Not Who You Know, That Counts
Posted on November 17, 2008I am a real big fan of this article here, on two recent rulings in major excessive fee 401(k) lawsuits, one against Wal-Mart and the other against Bechtel. While I haven’t read the rulings in those cases themselves yet, what I like about the rulings, at least as depicted in the article, is that they apparently did not focus on the actual amount of the fees, but rather on the process used by the defendant companies in selecting them, to decide whether the amount of fees attached to the plan’s investment options violated fiduciary obligations...
You Say Securities Law, I Say ERISA
Posted on November 11, 2008Stop me if I am beating a dead horse, but this press release/short story on a class action law firm’s investigation into a stock drop involving Hartford’s stock reads exactly like one that, a few years ago, would have been issued prior to pursuing a securities class action; now its written in advance of pursuing an ERISA breach of fiduciary duty claim, with the class consisting of the company’s 401(k) participants...
Revenue Sharing, Fees, Indemnity and Contribution: A Potpourri of Hot Button Issues Confronting Fiduciaries
Posted on November 06, 2008So you’re an amateur fiduciary, nominally in charge of a company’s pension plan or 401(k) plan but generally relying on your outside vendors and service providers for substantive advice and decision making, and you get sued for breach of fiduciary duty because of losses resulting from the investment advice you received from them...
Legal Services as Commodities, and the Role of Insurance in that Process
Posted on November 04, 2008The macro view of trends is often fun, but detailed analysis of what is really going on is often more fruitful. A long, long time ago - in blog years, anyway, which given the youth of legal blogging is akin to dog years - I wrote this post about how the rise of employment practices liability insurance would inevitably lead to a certain level of price pressures, standardization and commoditization with regard to employment law services...
The Amateur Fiduciary
Posted on November 03, 2008Geez, I hate to do this, but sometimes you have to play connect the dots. Reading this story about amateur (some would call it democratically run - small d, local government style) municipal pension plans and their investment strategies that got them caught up in the current collateralized debt obligation/securitization mess, I kept thinking to myself, where is the responsible, professional, knowledgeable fiduciary (or fiduciary retained vendor) in the investment decisions being chronicled...
Between a Rock and a Hard Place: Pity the Poor Fiduciary, Trapped Between the Securities Laws and ERISA
Posted on October 29, 2008One continuing theme in the posts on this blog is the replacement by plaintiffs’ class action firms of securities actions with ERISA breach of fiduciary duty actions in stock drop and similar type cases; the large class actions are brought on behalf of plan participants who hold company stock, often in an ESOP, against the plan fiduciaries...
Wooten and ERISA Preemption: When History and Current Desires Collide
Posted on October 28, 2008A little judicial activism anyone? I am not sure what else, when you look at the actual history of how ERISA preemption came into being, you can call the demands that come from many quarters for courts to reduce the scope of preemption in the ERISA context, or, for that matter, the Ninth Circuit’s decision upholding the San Francisco health insurance mandate...
LaRue, The Postscript
Posted on October 24, 2008Remember the grave concern in different quarters about whether the Supreme Court’s ruling in LaRue would lead to a flood of litigation? Turns out it didn’t even do so in the LaRue case itself, which, now on remand at the trial court level, has been voluntarily dismissed by the plaintiff to avoid the expense of litigating the case...
Plain English and the Insurance Coverage Lawyer
Posted on October 21, 2008I have written before about why insurance companies use experts on insurance coverage, and why policyholders need to use them too. Indeed, there is little doubt in my mind that lawyers who aren’t specialists in the field often put their clients at a disadvantage when they engage insurance companies in disputes over insurance policies without bringing in someone with years of experience interpreting and arguing over the language in policies...
TARP and ERISA Litigation
Posted on October 16, 2008Here’s an interesting looking and timely webinar from West next week on the stock market meltdown, the bank bailout, and their effect on ERISA governed plans. The short version of their pitch for the webinar, which ought to be in 20 point type spread across a banner headline, is “here come the breach of fiduciary duty lawsuits...
Does David Have to Pay Goliath if the Slingshot Misses Its Mark?
Posted on October 15, 2008Fee shifting provisions, such as the one in the ERISA statute, that authorize a court to award attorney’s fees to a prevailing party, are facially neutral, and allow for an award in favor of the prevailing party, whomever that may be, and against the losing party, again whomever that may be...
Apples and Oranges: Litigation Costs and QDROs in the Same Post
Posted on October 08, 2008A couple of different things from my desk today that are worth passing on. First, for those of you interested - as I am and have often discussed in these electronic pages - in the need to balance effective litigation tactics with the costs of litigation, particularly given discovery and e-discovery issues, I pass along this article here, which I truly enjoyed...
To Be or Not to Be (a Fiduciary, That Is)
Posted on October 07, 2008I talked about a case last week that addressed the damages aspect of making out a breach of fiduciary duty claim related to stock drop type issues, and pointed out the broad, ambiguous and easy to manipulate nature of a damages claim in that scenario...
A Random Walk Through the Ninth Circuit's Preemption Ruling
Posted on October 06, 2008Disparate thoughts. Connect the dots. Or maybe more unintended consequences. Take your pick. While many advocates of health care reform cheer the Ninth Circuit’s conclusion that ERISA does not preempt all state pay or play laws, I am a little dubious as to whether this represents anything more than a Pyrrhic victory for anyone actually interested in ensuring that everyone is insured...
Pay or Play Acts, the Ninth Circuit, and the Never Ending Law of Unintended Consequences
Posted on October 03, 2008Well, my trial this week is over, and I return to the blog with a - cue self-congratulatory, self-promoting note here - win in my back pocket. Last time I tried a case, I complained, tongue firmly in cheek, about the courts insisting on issuing major ERISA decisions while I was not available to discuss them, and they did it again this time around as well, with court decisions and legal developments in this area of the law pouring into my in-box all week...
On Backdating, ERISA, and the Possibly Unintended Consequences of the Diamond Hypothetical
Posted on September 26, 2008If you have an interest in both ERISA and in well written, logical judicial opinions, I can’t recommend highly enough this opinion, by Judge Gertner of the United States District Court for Massachusetts, in Bendaoud v. Hodgson, deciding a number of issues at the motion to dismiss stage...
Prior Knowledge Exclusions: An Ever Shifting Line in the Sand
Posted on September 24, 2008Who knew what and when did they know it? No, I am not talking about the Wall Street bailout; I am talking about something really interesting, prior knowledge exclusions in insurance policies (well, interesting to me anyway). Prior knowledge exclusions basically work like this: they say that there is no coverage under a liability policy if the insured knew or should have known, prior to commencement of the policy period, that activity it was involved in would result in a claim against it...
Fiduciary Duties: It Ain't Easy
Posted on September 23, 2008With regard to my post yesterday about fiduciaries having the power, authority and motivation to act to protect plan participants, of course, that’s a lot easier for a fiduciary to do if its vendors are giving it advance notice of losses before the rest of the market finds out, and a lot harder to do if a fiduciary is one of the vast majority who aren’t given that advantage...
Joshua Itzoe on Fixing the 401(k)
Posted on September 22, 2008In an odd coincidence, at the same time Wall Street has been imploding, laying bare valuation and other problems with investments in retirement plans and elsewhere, I happen to have been reading independent fiduciary/401(k) advisor Joshua Itzoe’s book, Fixing the 401(k), which is premised on the idea that 401(k) plans are compromised by inherent, systemic problems, ranging from issues in plan design to the significant impact of fees charged against plan assets (Susan Mangiero, who knows as much as anyone around about valuation, fee, and other issues impacting pension investments, has a valuable review of Joshua’s book here)...
Does a Dying Industry Guarantee Pension Litigation?
Posted on September 18, 2008This is one of those days in which the possible blog topics come fast and furious, many of them driven by the once every hundred years or so events on Wall Street and what they tell us about both the obligations of fiduciaries of retirement plans and their concomitant ability to live up to those obligations...
ERISA, ESOP and the LA Times
Posted on September 16, 2008What happens when journalists, Sam Zell, ERISA and employee stock ownership plans collide? Well, at a minimum, you get a really interesting and well written complaint alleging breach of fiduciary duty under ERISA. Here is the WSJ Law Blog post on this, and thanks to the post, here is the complaint itself...
A Top 50 Blog? I Always Thought So
Posted on September 15, 2008During the Olympics, I read an interview with someone who said he just wanted to be the Michael Phelps of something, anything at all. While my aspirations may not run quite that unrealistically high, its certainly fun to be recognized as one of the top 50 of anything...
Electronic Discovery is . . .
Posted on September 11, 2008A. Broken; B. Subject to abuse; C. So expensive that it can force settlements even where the merits don’t warrant it; D. An aspect of civil procedure that is still waiting for the courts to create a jurisprudence that will properly manage its potential costs and complexity; E...
Is ERISA Preemption Coming to the Massachusetts Health Care Reform Act?
Posted on September 10, 2008You know that theme music from the movie Jaws? Cue it up - the sharks are circling the Massachusetts Health Care Reform Act. Hard on the heels of the recent reports that the state is going to have to increase the financial obligations of employers to maintain the near universal coverage called for by the act comes this story noting the same thing I said yesterday, that increasing the obligations the act imposes on employers will likely provoke a preemption challenge...
Massachusetts' Pay or Play Act: The Triumph of Hope Over Experience?
Posted on September 09, 2008I have said it before and I will say it again: the day they fess up to the real costs of insuring the uninsured in Massachusetts and admit they need to pass that cost onto employers is the day before someone files a lawsuit asserting that the Massachusetts Health Care Reform Act is preempted...
Systemic Losses and Fiduciary Liability
Posted on September 08, 2008We have all taken note of the run up in filings of very large breach of fiduciary duty cases against plan fiduciaries that are based on the tremendous losses incurred in investments held by plans as a result of the subprime lending mess. The filings themselves are noteworthy, and the numbers, losses and alleged misconduct depicted in them are eye-grabbing, in ways reminiscent of tabloid headlines that focus on the most sensational elements of a story for the purpose of separating readers from their three quarters...
You Can Run, But You Can't Hide From ERISA
Posted on September 04, 2008Two interesting but different stories that both relate to the broad impact that ERISA has across the workplace. Here, in this first one, you find the story of the Third Circuit concluding that certain death benefits were not pension, but instead welfare, benefits, which did not vest and could be revoked, despite long time practice and the reliance of employees on the benefit as part of retirement planning...
Retaliate for Seeking Benefits?
Posted on August 27, 2008Probably the only really note worthy decision out of the First Circuit with regard to ERISA while I was out of the office is this one here, in Kouvchinov v. Parametric Technology Corp., which addressed the standards for proving a claim of retaliatory job action in response to a claim for ERISA governed benefits...
Recent Case Law on Extra-Administrative Discovery After Glenn
Posted on August 26, 2008When people start emailing you to inquire about your health, you know you have been away from your blog too long. Rumors of my demise, however, were premature, as I was simply on vacation; normally I keep up with developments and am able to put up some posts while away, but I didn’t get a chance to this time...
What Patry Has to Do With ERISA
Posted on August 07, 2008Geez, I hope it isn’t something I said. Some of you may remember that a little while back, in a post discussing why I blog predominately on ERISA and insurance issues but only occasionally on intellectual property issues, I mentioned that there were a lot of terrific intellectual property blogs already out there, mentioning in particular William Patry’s copyright blog...
The End of the Pre-History of Retirement
Posted on August 05, 2008Here is an entertaining history of retirement in a nutshell, at least up to the new world we inhabit today, in which defined contribution plans govern and employees bear all the risk. What is interesting to note is that this conventional version of the story basically ends with the - effectively, in any event - death of pensions...
A Real World Legal Guide to Issuing Reservation of Rights Letters
Posted on July 29, 2008Now this is neat. Here is something that, at least to insurance coverage people, is actually pretty cool. In a world in which most published articles in the legal realm take place on a somewhat airy level, we don’t see enough pieces that provide practical information that is useful in dealing with the nitty gritty aspects of day to day work, particularly concerning those aspects of business life that require making practical use of legal standards and controlling principles...
Using Up My Fifteen Seconds of Fame
Posted on July 28, 2008There were a lot of things on my desk I could post about today, but I am going to take the easy - and self-promoting - way out, and pass along this article from Massachusetts Lawyers Weekly on the W.R. Grace decision out of the First Circuit on the question of standing in ERISA cases, which I blogged about last week...
Notes for a Friday
Posted on July 25, 2008I thought I would pass along a couple of things of interest that I read this week, before next week starts up with its own events. Taking up where my comments on the status of extra-administrative record discovery in the aftermath of MetLife v. Glenn left off, Roy Harmon has this post on a Ninth Circuit decision pointing out that MetLife v...
Some More Thoughts on the Primacy of the ERISA Plan Document
Posted on July 23, 2008Judge Gertner of the United States District Court for the District of Massachusetts has an interesting, if brief, ruling that is just out granting a motion to dismiss a severance pay claim under an ERISA governed plan. What caught my eye about it relates back to this post I wrote a few weeks ago, in which I pointed out the need, in litigation planning and counseling concerning ERISA plans, to resist putting undue emphasis on representations that are inconsistent with the actual terms of a plan, because the courts are likely to ignore such statements and to instead simply enforce what is written in the plan documents...
The First Circuit on ERISA Standing
Posted on July 22, 2008Very interesting case out of the First Circuit the other day on the question of whether former employees satisfy ERISA standing requirements with regard to defined contribution plans. Short answer is they do, but the Court’s analysis and discussion is an interesting open field run across a range of issues that are both explicit and implicit to any consideration of this question...
What Effect Does MetLife v. Glenn Have on Discovery in Denial of Benefit Claims?
Posted on July 18, 2008Apparently none, at least according to the first ruling on this question I have seen out of a court in the First Circuit. In a ruling by a magistrate judge, the United States District Court for the District of Maine has concluded that MetLife v. Glenn does not change the rules in the First Circuit governing the extent to which - if at all - a party is allowed to conduct discovery beyond the administrative record itself in a denied benefits case governed by the arbitrary and capricious standard of review...
A Middle of the Road Supreme Court?
Posted on July 17, 2008Here is an interesting article in which a former Solicitor General argues that the popular - and perhaps a little bit intellectually lazy - characterization of the current Supreme Court as “pro-business” may, at a minimum, be overstating the case a bit...
Understanding ERISA Preemption as a Legitimate Congressional Policy Determination
Posted on July 15, 2008Many, many people object to ERISA preemption, viewing it as some sort of nasty trick that defendants use to avoid liability in ERISA related cases. Do a quick search for ERISA and preemption on Google Blog and you will find that out pretty quick. But to me, they misunderstand preemption, which was a legitimate policy choice by the Congress that passed ERISA to maintain one consistent federal policy and body of law for purposes of employee benefits...
Promises, Promises . . .
Posted on July 10, 2008Rob Hoskins over at the always interesting ERISABoard has an interesting story about a Second Circuit decision that essentially says “too bad” to a plan participant’s waiver/estoppel theory seeking benefits. The story is consistent with what seems to be a trend in which courts frequently fall back to the terms of the actual plan to decide a dispute, and seem unwilling to allow extrinsic, often but not always verbal, representations to participants to vary or even trump the written terms of the plan documents themselves...
Insurance and the World at Large
Posted on July 08, 2008I am asked on occasion about the topics of this blog and their connection to my practice, more particularly how I ended up focusing the blog on its two primary subjects. For years, my litigation practice has focused primarily on three areas: intellectual property, ERISA and insurance coverage, in no particular order...
On Intoxication and Accidental Death and Dismemberment Policies
Posted on July 07, 2008I wrote a long time back about Stamp v. MetLife, a decision out of the United States District Court for Rhode Island on a particular, oft litigated, and unfortunately frequently repeated fact pattern: namely, whether an unwitnessed automobile accident causing death of an apparently intoxicated driver constituted an accident for purposes of ERISA governed accidental death policies...
From Preemption to ERISA Standing, and Lots of Things In-Between
Posted on June 30, 2008Philadelphia, New York, court hearings - I have been everywhere the past week or so other than at my desk where I could put up blog posts. Here’s a run down of interesting things I came across along the way that you may want to read. First, for those of you who can’t get enough of this topic - I know I can’t, but then I am fascinated enough by this stuff to maintain an entire blog on the subject of ERISA - Workplace Prof passed along this student note on preemption and “pay or play” statutes: Leslie A...
The Supreme Court's Ruling in MetLife v. Glenn
Posted on June 19, 2008How dare the Supreme Court issue a major ERISA ruling while I am tied up in court this morning! How inconsiderate of my schedule. Given that there are only a few of us blogging regularly on these issues, seems to me the least the Court could have done is coordinate the release of its opinion in MetLife v...
A Brief List of Things Worth Reading
Posted on June 13, 2008Even when trying cases, I have never had a week so busy since launching the blog that I haven’t been able to find time to post. David Rossmiller likes to say that work is the curse of the blogging class, but even when really busy, I have always found writing up a blog post to be a nice chance to recharge my batteries...
Two More ERISA Cases for the Supreme Court?
Posted on June 05, 2008The good folks who write the SCOTUS blog are engaged in one of their periodic attempts to read the tea leaves and predict what cases the Supreme Court will choose to hear. This time, they think the Court will review two ERISA cases, Geddes v. United Staffing - which concerns the standard of review to be applied to benefit determinations when fiduciary duties are delegated to a non-fiduciary - and Amschwand v...
Follow the Numbers: the Evolution in ERISA Law
Posted on June 02, 2008I have noted two things - well, many things, only two of which are relevant to this post - in the past, one the line that Marx was wrong about a lot of things, but he was right that everything is economics, and the second that we are beginning to see an incremental evolution in the law of ERISA to account for the reality that pensions - predominant at the time of many of the earlier, key court rulings on ERISA - have been supplanted by defined contribution plans...
There's A Public/Private Sector Distinction For a Reason
Posted on May 29, 2008Two of my favorite bloggers ended up at the same place on a topic of interest over the past week, although from different directions and apparently unwittingly. The WorkPlace Prof posted last week on the idea being floated in a number of state legislatures that the states or their pension plans manage private sector 401(k) (or equivalent) plans and funds, and noted that this simply didn’t sound like a good idea...
Who Let the Additional Insured Out? Who? Who?
Posted on May 27, 2008It seems like these days I have been reading a lot of interesting things on the subjects covered by this blog, many of which I either haven’t been able to pass along because of time constraints, or haven’t passed along because there isn’t enough to say about them to warrant a full blown post...
Extraterritorial Application of ERISA
Posted on May 22, 2008Ever wonder about ERISA’s effect on benefits provided to employees assigned to overseas’ posts? Didn’t think so. But Paul Secunda has.
Actuarial Assumptions and Problem Pensions
Posted on May 21, 2008Maybe, rather than three, there are actually four kinds of lies: lies, damn lies, statistics, and actuarial assumptions relied upon for public pensions. A little harsh, perhaps, but that is certainly what this article in the New York Times today suggests...
On the Impact of Reservation of Rights Letters
Posted on May 19, 2008I have written before on a number of occasions about the tripartite relationship that comes into play when an insurer retains defense counsel to represent an insured against a covered lawsuit. In particular, I have discussed my views that the relationship is nowhere near as complicated as many people make it out to be, and that the proper scope of the dealings among all the players in that three sided transaction can be summed up in three handy rules of thumb, which, conveniently enough, you can find right here...
Millions for Defense, Billions for Damages: State Street's Exposure
Posted on May 14, 2008Backdating. It’s a scandal. No, not that backdating. I mean when bloggers can’t get to something when it first comes up, and then go back in time to talk about it. That’s what I mean by backdating, and that’s what I am going to do today...
LaRue, Auditing, and 401(k) Plans
Posted on May 13, 2008On various occasions on this blog I have tried to turn away from its understandable focus on legal issues and onto the real world consequences of the legal rulings that govern ERISA plans. In particular, I have a particular interest, because of the manner in which it impacts my clients, on what practices companies should follow to best protect themselves from potential exposure in the current - and in the ERISA world these days, ever changing - legal environment...
Big Questions From A Small Story on a (Relatively) Small Loss
Posted on May 08, 2008Here’s a short newspaper story of a local municipal pension plan that suffered a $2.4 million loss to its pension fund, which is only about a $53 million fund, as a result of investments in subprime mortgage backed assets made either by State Street or in State Street funds (the article isn’t clear on the relationship between the pension plan and State Street, the current poster boy for breaching fiduciary duty by subprime investments)...
Excessive Fee Litigation: A Real Problem or An Imaginary One?
Posted on May 07, 2008Here's a piece passed along by the Workplace Prof, noting the rise in excessive fee litigation under ERISA. I have noted before that the combination of demographic and economic factors with the ruling in LaRue is going to create more of these types of actions over the years, not less, and thus I share the skepticism the Prof expresses over whether, as a defense lawyer quoted in the piece suggests, these cases don't pose a significant problem for plan administrators...
Why Structural Conflicts of Interest, Standing Alone, Are Irrelevant
Posted on May 01, 2008Workplace Prof passes along today this opinion out of the Seventh Circuit by Judge Easterbrook addressing the question of structural conflicts of interest and their effect on the standard of review in ERISA governed benefit cases. Anyone who has read the bulk of my past posts on this subject knows that I do not buy the idea that the mere existence of the structural conflict standing alone - without more, such as an inference of distorted decision making that can be drawn from the administrative record itself - should affect the standard of review...
More on the Arthur Andersen Ruling
Posted on April 29, 2008I like the legal issues raised by it; bigger media outlets like the big numbers involved. Either way, the story gets big play. Here’s the National Law Journal’s article on the Seventh Circuit’s ruling on the lack of coverage for Arthur Andersen’s pension obligations, a ruling I discussed in detail in this post here.
Some Thoughts on the Oral Argument in MetLife v. Glenn
Posted on April 28, 2008I had a chance over the weekend after a busy few days to ruminate on the oral argument in MetLife v. Glenn, a transcript of which you can find here; you can find Workplace Prof’s review of the argument here and a thorough recap of the argument here, at SCOTUS blog...
A Few Words on the Practicalities of Electronic Discovery
Posted on April 23, 2008I have written a lot on the blog about electronic discovery, most recently in this post, and much of it relates to the legal issues revolving around whether and when to allow such discovery. Before it vanishes off their website, I thought I would pass along this piece out of the Massachusetts Lawyers Weekly that looks at electronic discovery from a more prosaic but equally important perspective, the practicalities of actually engaging in it.
MetLife v Glenn in a Nutshell
Posted on April 22, 2008On Wednesday, the Supreme Court is holding oral argument in MetLife v. Glenn, the case that will supposedly tell us once and for all what the effect is on ERISA litigation when the party who has to pay ERISA governed benefits is also the one who decides whether to pay those benefits...
On Discovery Problems and Solutions
Posted on April 21, 2008Here’s an interesting law review article, passed along in detail by the Workplace Prof, on problems, and potential solutions, in managing discovery. Discovery, to beat what must now be a dead horse, has become infinitely more complicated and expensive - with far more consequences for mistakes - in any type of complex litigation with the adoption of the federal rules governing electronic discovery (and in fact with the rise of computerized data itself)...
Does Employer Stock Even Belong In Retirement Plans?
Posted on April 17, 2008Should there even be employer securities in a 401(k) plan or other retirement vehicle? That’s the million dollar question (or more like the hundred million dollar question) that cases like those arising out of the Bear Stearns collapse raise. Moreover, it goes right to the underlying tension between ERISA and the securities laws that plays out in the concept of fiduciary duty: namely, the extent to which it is appropriate for a fiduciary to continue to allow employer stock holdings in a retirement vehicle when the company is simultaneously facing market pressure on its stock price and an obligation to comply with the securities laws in dealing with the marketplace as a whole...
Pension Estimates: Not Worth The Computer They Are Printed On
Posted on April 17, 2008Here’s an interesting decision out of the First Circuit yesterday, concerning errors in providing estimates of pension amounts to participants and whether a participant can hold the sponsor to the erroneous estimate, rather than receive only the correct amount under the actual terms of the retirement plan in question...
Passing Along Some Reading on Excessive Fee Cases and Other Timely ERISA Topics
Posted on April 16, 2008What would this blog be if it was done as a newsletter instead? Well, probably something like this new ERISA newsletter out of Proskauer Rose, with its detailed but readable length discussions of current events in the field, such as the Supreme Court’s recent decision in LaRue and the Supreme Court’s consideration of whether to hear a case that will allow it to return again to the problem of defining the available scope of equitable relief under ERISA...
What Happens When ERISA and the Law of Insurance Coverage Collide?
Posted on April 11, 2008Wow, I guess this is really Seventh Circuit week here, with, I guess, a particular focus on the jurisprudence of Judge Easterbrook, whose opinion in Baxter I discussed in my last post. This time, I turn to his decision from Wednesday in Federal Insurance Co...
What LaRue Wrought
Posted on April 08, 2008Suzanne Wynn has the story of the day when it comes to ERISA litigation, as she posts on the Seventh Circuit’s application of LaRue to exactly the type of case that, had the Supreme Court ruled otherwise, would have gone away without any potential liability on the part of the fiduciaries or, for that matter, recovery by the plan participant...
Legal Rights That Are Protected In Courts, May Well Be Lost In An Arbitration
Posted on April 07, 2008I haven’t commented in the past on this, because there was too much else going on directly on point with ERISA. However, as many of you may know, the Supreme Court issued an opinion a week or two back in essence concluding that parties may not contract between themselves to allow a court to review an arbitration award beyond the limited review provided for under the Federal Arbitration Act...
The Hard Headed Business Case for ERISA Preemption of State Health Insurance Mandates
Posted on March 27, 2008Why does ERISA preemption matter in the health insurance context, and why do many people think it should preclude state health insurance mandates, such as the Wal-Mart law already deemed preempted in Maryland and the San Francisco ordinance that is currently the subject of litigation over the question? Leaving aside the legal reasons why the acts are preempted, it is because employers, who provide most of the health benefits in the country, rely upon the stability and predictability generated by ERISA and the preemption doctrine...
A Blog to Pass Along, and Some Thoughts About the Supreme Court's Interest in ERISA
Posted on March 26, 2008Lots going on, lots to talk about. Let’s start with this one, which, coincidentally, allows me to kill two birds with one stone. You may recall that some time back I mentioned that I had come across two interesting blogs that I wanted to pass along, one of which was The Float, covering primarily investment related issues and their intersection with ERISA...
Back to the Well: Fiduciaries and Subprime Assets
Posted on March 25, 2008I guess this is the flip side of all the grief that is starting to come down on fiduciaries for excessive - or at least what seems to plaintiffs’ lawyers to be excessive in hindsight - exposure to the subprime mortgage mess in pension and 401(k) holdings: pension plan fiduciaries now adding such exposure to their funds in the hope of goosing returns by buying these beaten down assets at fire sale prices (kind of like they are playing at being Jamie Dimon)...
Back From Trial, But the World Kept Spinning In the Interim
Posted on March 21, 2008My trial finally concluded late yesterday after two weeks, with the jury returning a verdict in favor of my client (pause here for self-congratulatory pat on the back). While I was able to get some posts up last week, during the first week of trial, events during trial this past week left me with no time to post...
More Supreme Court Interest in ERISA Remedies Cases
Posted on March 13, 2008The Supreme Court continues to look for ERISA cases to serve as vehicles for exploring the current and proper parameters of that statute, and last week requested from the Solicitor General’s office the government’s views on a potential ERISA case for the Court’s docket, Amschwand v...
A Potpourri of Interesting California Insurance Coverage Decisions
Posted on March 12, 2008Still on trial, but I did have time this afternoon to read this interesting piece, summarizing a number of interesting appellate decisions over the past year from California courts on a range of insurance coverage issues, running from post-claim underwriting of health insurance to the scope of coverage granted by directors and officers policies...
Gone Fishing - Not Really
Posted on March 10, 2008I am starting a trial today, so my posting will be sporadic and erratic at best. As I did the last time I was trying a case, I will try to at least find time to pass along new court decisions, publications, or events of significance while I am on trial, even if I don’t comment much on them in the posts; if they warrant it, I will return to the posts later to discuss the issues in more detail.
Want to Learn More About the Post-LaRue World?
Posted on March 07, 2008I am trying to kick the LaRue habit, but couldn’t resist going back to the well one more time (how’s that for mixing my metaphors?). I know from readers of this blog and from talking to other lawyers that people are very interested in LaRue and the Supreme Court’s current interest in ERISA cases - in fact, one lawyer told me that right after LaRue was decided he was at a meeting on an entirely different topic but LaRue is all anyone wanted to talk about that day- so I wanted to pass along this very interesting looking teleconference next month on individual 401(k) suits post-LaRue...
Passing Along an Interesting Blog: Number One
Posted on March 05, 2008One interesting thing about the LaRue case is the amount of blog commentary it inspired. For me personally, the best aspect of that wasn’t so much what other bloggers had to say about the subject, but more the fact that the discussions brought some blogs to my attention that I had not previously been aware of...
More on LaRue: Lawyers USA Weighs In
Posted on March 04, 2008Thought I would pass this along right now, while the article is still available to non-subscribers - I suspect if you read this post tomorrow, you will have to subscribe to get access to the article by then. Either way, here’s an interesting article available on Lawyers USA today on the LaRue decision, and on the broader topic of what impact it will have...
Choice Architecture, 401(k) Plans and the Argument for Restricting Choice
Posted on March 03, 2008The topic of this article from yesterday’s Boston Globe, concerning behavioral economics and the idea that most people simply get it wrong when making investment choices with regard to retirement if they are left to their own devices, will be familiar to any long time reader of this blog, but it did catch my eye because its suggestion that employees need to be guided towards the right retirement choices echoes George Chimento’s point, which I discussed the other day, that perhaps 401(k) plans should actually be set up to take those choices away from employees and place them in the hands of someone with more knowledge about the subject...
Will LaRue Actually Lead to An Increase in Litigation?
Posted on February 29, 2008I thought I would pass along today this article from Business Insurance in which I am interviewed about LaRue, and its impact on plan sponsors. The point of the article is that the decision opens them up to more potential liability, and they need to be aware of that...
Fiduciary Obligations - and Common Sense - Support Hiring Outside Expertise for 401(k) Plans
Posted on February 27, 2008One of the common themes of many of my posts, as well as of many of the judicial opinions, concerning fiduciary obligations of companies sponsoring 401(k) plans is the need to bring in outside expertise to manage the plans, particularly for the purpose of insuring that investment selections are appropriate and priced right...
A Break from LaRue: Anticipating Insurance Coverage Disputes Over Climate Change Exposures
Posted on February 26, 2008Can’t do LaRue all the time, every post, although, frankly, the more one thinks about the Supreme Court’s three opinions, the more one can come up with to talk about. I will return to various issues raised by the opinion here and there, as time and interest allows...
A Couple of Other Perspectives on LaRue
Posted on February 25, 2008There’s a lot out there on the Supreme Court’s ruling in LaRue, and I thought I would pass along today a couple of articles and blog posts that approach the issues raised by the case from a slightly different perspective than simply the technical legal issues raised by the case...
Interpreting LaRue
Posted on February 21, 2008Some follow up thoughts on the Supreme Court’s opinion in LaRue, after having some time to digest it. First, the court’s three opinions make for an interesting assortment of analyses of the issue, but what is most important on the front lines, down at the trial level where these issues play out in court, is the unanimous agreement that an individual 401(k) participant can sue for losses to just his or her account...
The Supreme Court Decides LaRue, In Probably Predictable Fashion
Posted on February 20, 2008As a practicing litigator, I often can’t delve too deeply into a particular issue right when it arises, and instead have to return to it that night to analyze it for further discussion the next day. With a trial set to start in one of my cases and a court appearance this afternoon, this is one of those instances, but I did want to pass along the Supreme Court’s opinion in LaRue, just issued today...
Supreme Court and Qualified Domestic Relations Orders
Posted on February 20, 2008Interestingly, right after I posted about Albert Feuer’s detailed analysis of the proper role of Qualified Domestic Relations Orders (“QDRO”) in the ERISA scheme, the Supreme Court granted cert in a case on that exact issue (although I don’t intend to imply a causal relationship between the two events)...
Want to Learn More About the Tripartite Relationship?
Posted on February 19, 2008One of the widest read and linked to posts I have written recently was this one here providing the law of the so-called tripartite relationship in thumb nail fashion. Interest in this topic surprises me to a certain extent, because very much the point of the post was that, despite all the seminars and publications addressing the topic, I really think the rules governing the relationship among insureds, insurers and insurer appointed defense counsel boil down to a pretty simple set of working principles, which I discussed in that blog post...
Alienation of ERISA Governed Benefits
Posted on February 14, 2008I’ve had an interesting collection of educational materials and seminars piling up on my desk for awhile now, a number of which may be of interest to various readers of this blog. In the hope of both clearing up that backlog and passing along useful information, I am going to start a short series of - or maybe a series of short - blog posts on them, until they are exhausted...
I Want My (Pension Tension Blues) MTV
Posted on February 13, 2008For better or worse, I’m old enough to remember where I was when MTV debuted, back when it actually played music videos. I am sure there is something to be said about the fact that a quarter century later, I now watch music videos about fiduciary risks concerning pensions, but I am not sure exactly what...
A First Step Towards Supreme Court Consideration of Whether Fair Share Acts are Preempted
Posted on February 11, 2008Well now, at some point, I am convinced, we are going to get the Supreme Court to weigh in on exactly when and when not states can regulate employers’ provision of health care to their employees in light of ERISA preemption. As we have discussed here on numerous occasions, the Fourth Circuit has staked out a strong position precluding states from meddling in that relationship, while a panel of the Ninth Circuit, ruling on an interlocutory matter concerning injunctive relief over the institution of a similar act by the City of San Francisco, has found that local governments have some substantial leeway in this regard despite the existence of ERISA preemption...
The Benefits of Relying On Investment Managers
Posted on February 07, 2008We all know that in reality, most companies that sponsor retirement plans, including 401(k)s, for their employees bring in outside advisors to manage the plan. There are at least two primary reasons for this, the first being that most companies don’t have the expertise to select investments and otherwise run plans themselves, and hope to get better retirement plan performance by relying on outside expertise...
Money Talks, Even About the Massachusetts Health Care Reform Act
Posted on February 06, 2008A number of different things I want to talk about, including an interesting decision discussing the obligations of plan sponsors when it comes to selecting advisors and some interesting thoughts on QDROs. I will sprinkle those in later, but for now I thought I would pass along Steve Bailey of the Boston Globe’s column today on the issues raised by the Massachusetts Health Care Reform Act, which basically mirrors what I have said in prior posts, such as my last one, about the statute and issues with its implementation...
The Massachusetts Health Care Reform Act as Evidence of the Need for Preemption
Posted on February 05, 2008Stories like this make clear that advocates of state fair share plans who like to point to the Massachusetts Health Care Reform Act as a shining exemplar of what could be accomplished if only ERISA preemption would go away are barking up the wrong tree...
Seldom Seen: Awarding Attorney's Fees Under ERISA to a Prevailing Defendant
Posted on February 04, 2008This is something you don’t see every day, namely an award of significant attorney’s fees to the prevailing defendant in an ERISA governed action. In R.I. Carpenters Annuity Fund v. Trevi Icos Corp., just decided by the United States District Court for the District of Rhode Island (but not yet up on its website), the court entered such an award against the losing plaintiff, a union provided employee benefit plan, on a claim brought by it under ERISA, even though the court acknowledged that ERISA’s fee shifting provisions are seldom used to require a losing plaintiff to pay attorney’s fees to a prevailing defendant...
And in Super Bowl News . . .
Posted on February 01, 2008Well, it’s finally Super Bowl weekend, so how do we tie that into the issues covered by this blog? Easy. Here’s a terrific article in this week’s Sports Illustrated (hey, we can’t get all our reading from Aspen Publishers) on the problem of disability and health benefits - and the fact that there effectively aren’t any - for long retired NFL players...
LaRue is Decided . . . Well, Sort of
Posted on January 30, 2008In an opinion it issued on Monday, the United States Court of Appeals for the Sixth Circuit confronted essentially the exact same facts and issues as are at play in the LaRue case currently pending before the Supreme Court, and effectively entered its own prediction as to how the Supreme Court will rule in LaRue...
And Still Another View on Preemption and the Massachusetts Health Care Reform Act
Posted on January 28, 2008I’ve noted in the past that the problem with state health care reform acts mandating health insurance is that they don’t tackle the issue that is deterring employers from providing broader health insurance benefits, namely the ever increasing and rapidly escalating cost of health insurance...
Someone Else's Thoughts On Preemption and the Massachusetts Health Care Reform Act
Posted on January 28, 2008People with thin skins - or who can’t laugh at themselves - shouldn’t write blogs. I got a good chuckle out of this over my morning coffee this morning.
The Lessons of the Massachusetts Health Care Reform Act's $400 Million Shortfall
Posted on January 25, 2008There’s a lot to be said about the preemption issues raised by state health insurance mandates and the assumptions that underlie the beliefs of those who argue that ERISA preemption should not be allowed to prevent states from experimenting with acts intended to remedy the problem of the uninsured...
Establishing Status as a Top Hat Plan in the First Circuit
Posted on January 24, 2008At long last and after much effort, I think we may have succeeded in converting S.COTUS, the anonymous blogger on all things First Circuit at Appellate Law & Practice, into an ERISA hobbyist. How else to explain his (her?) expansive and insightful post yesterday on the First Circuit’s analysis of top hat plans in the decision the court issued yesterday in Alexander v...
The Governance of Retirement Plans in the Aftermath of the Subprime Meltdown
Posted on January 23, 2008Fellow blogger Susan Mangiero and I are quoted extensively in a very interesting article, available here, in the January issue of the Institutional Real Estate Letter. The article, titled Investing in Good Governance, focuses on one of - if not the only - potential silver linings in the whole subprime mortgage mess, namely the possibility that it will help to focus pension plan fiduciaries on the fiduciary obligations, particularly as related to protecting plan assets from ill advised and ill informed investments, that they owe to the plan itself and to plan participants.
Supreme Court to Weigh In on Structural Conflicts of Interest
Posted on January 22, 2008I suggested some time ago that the Supreme Court looked poised to weigh in on some of the more tempestuous ERISA issues floating around the circuit courts of appeal, and there is probably no single issue that has raised more hackles than the question of so-called structural conflicts of interest, which exists when the administrator who decides a claim for benefits under ERISA is also the party who will have to pay the benefits if the claim is allowed...
Niche Insurance and Government Investigations
Posted on January 21, 2008I had two different, perhaps more substantive things in line to talk about today, but I think I am going to push them back to later in the week, to instead pass along a highly entertaining article (at least to people who really like the ins and outs and oddities of the insurance industry) that showed up on my doorstep in yesterday’s New York Times...
Insurance Coverage, Tuberculosis, and that Guy on the Plane
Posted on January 18, 2008You see, everything at the end of the day is about insurance. Risk sharing that allows smaller businesses to move forward with operations, plaintiffs’ decisions over who has enough insurance to warrant suing, even the economic dislocations of climate change - everything comes back to the insurance industry...
Researching Pension Related Litigation
Posted on January 17, 2008Dying is easy, comedy is hard? No, ERISA is hard. I tell people all the time that there is almost no such thing as a simple answer to an ERISA related question, or at least no such thing as a straightforward answer. There are entire chapters in ERISA treatises dedicated to the seemingly, but actually not, question of the proper manner in which to request plan documents so as to invoke the statutory obligations, upon financial penalty, imposed on administrators to produce them...
And in NFL News . . .
Posted on January 16, 2008Here’s an interesting little case out of the Fourth Circuit this week concerning what, at this point, must be the world’s most famous long term disability plan, namely the NFL’s Bert Bell/Pete Rozelle NFL Player Retirement Plan. This plan has been the subject of much media commentary over the past few years, as former players have come forward to complain about the benefits available under the plan to long retired players and as stories, like this one here concerning former Pittsburgh Steeler Mike Webster, have come to light involving questionable decision making in denying the claims of long retired players...
The Meaning of Arbitrary and Capricious Review
Posted on January 15, 2008A colleague - who, to protect the innocent, shall remain nameless (sort of a blog witness protection program) - passed along this remarkable decision out of the Fourth Circuit this month, Evans v. Eaton Corporation Long Term Disability Plan. The decision is an elegant and sustained defense of the granting of discretion to administrators and the application of the arbitrary and capricious standard of review under ERISA...
On Directors and Officers Insurance
Posted on January 11, 2008Earlier in the week, I promised to pass along over the course of the week some interesting articles on insurance coverage issues that I had been reading, and here we are, the end of the week already, and I haven’t done so, having been waylaid along the way by breaking news like the Ninth Circuit’s stay of the ruling that San Francisco’s health insurance ordinance was preempted...
The Ninth Circuit on the San Francisco Health Insurance Mandate Ordinance
Posted on January 10, 2008Workplace Prof has the story here of a three judge panel out of the Ninth Circuit staying the district court ruling that the San Francisco ordinance mandating the provision of health insurance by employers was preempted, and provides a link to the ruling...
A Handy Dandy Summary of the Law of Electronic Discovery
Posted on January 09, 2008Practicing lawyers like things that condense a lot of information accurately into relatively compact but still useful formats. I suspect - or at least hope - that is why many people read this blog, for instance. Along those lines, tucked in among the piles of junk email in my in box for mail order pharmacies and new books the publishers think I should buy, was an excellent little nugget from a company whose email newsletters on electronic discovery I do make a point to open and read...
The Recent History of Subprime Litigation
Posted on January 08, 2008Kevin LaCroix, at his D&O Diary blog, has a tremendous history of the recent filing of subprime litigation, including class actions, many filed under ERISA. While I don’t necessarily agree with each of his interpretations of that history, it’s as good an overview of the subject as a whole that I have seen in any media...
The Three Rules of the Tripartite Relationship
Posted on January 07, 2008We’ve been a little ERISA heavy here for awhile now, somewhat to the detriment of the insurance litigation half of the blog’s title, simply because of the range of interesting events that have taken place under the ERISA rubric lately. While all that was going on, though, a particularly good collection of articles on different insurance coverage topics have crossed my (electronic) desktop, and I want to pass them along as well; I will try to scatter them in with other posts over the next week or so, until I exhaust them...
SmartMoney on the Practicalities of Complying With ERISA
Posted on January 04, 2008This is a law oriented blog, obviously, and one of the things that is always worth remembering is that the complicated legal issues played out in the cases discussed here have real world implications for plan participants and for businesses trying to provide benefits to their employees...
Two for the Price of One: An Excellent District Court Ruling Worth Reading, and More on the First Circuit's Decision in Gillis
Posted on January 03, 2008A couple of notes on cases today. Before the holidays, I posted about the First Circuit’s decision in Gillis, concerning an administrator’s discretion in calculating possible pension payments and how the discretionary authority granted to the administrator drove the conclusion that a challenge to the pension calculations would not be upheld in the courts...
Will the Critics Get Their Wish? The Supreme Court Gives Some Thought to Structural Conflicts of Interest
Posted on January 02, 2008Unlike me, Appellate Law and Practice, the scrivener who covers all things appellate, didn’t take New Year’s Eve off, and noted that day that the federal government had recommended that the Supreme Court accept cert in a case addressing the question of how a structural conflict of interest - that is, where the administrator who is deciding benefits under an ERISA governed plan is also the party responsible for paying such benefits if they are awarded - should affect the standard of review applied by a court to a challenge to a benefit determination...
ERISA Preempts Another One: Striking Down the San Francisco Ordinance
Posted on December 28, 2007Well, I have talked before about dog bites man stories, and here’s another one. The United States District Court for the District of Northern California has now ruled that San Francisco’s ordinance requiring certain health care expenditures by employers was preempted by ERISA...
Age Discrimination, or a Rational Response to Economic Factors?
Posted on December 27, 2007Take a few days off, and news just keeps on piling up. In the next few posts, I am going to try to pass along some of the more interesting events, articles, court decisions and stories that crossed my desk over the past several days, starting with this one, a story out of the New York Times today that does an admirable job of explaining a new regulation out of the EEOC allowing employers to provide different health benefits to retirees under 65 than to retirees over that age...
The First Circuit on an Administrator's Discretion in Determining the Amount of Retirement Benefits
Posted on December 20, 2007Oddly, this appears to be “calculating benefits” week among the courts of the First Circuit. In addition to the LeBlanc case I discussed in the last post, the First Circuit just ruled on a case involving a challenge to the calculation of pension benefits...
When Can You Sue an Employer for Denial of ERISA Governed Benefits?
Posted on December 20, 2007Interesting case out of the United States District Court for the District of Maine the other day, concerning a challenge by a plan participant to how his long term disability payments were calculated. The court essentially found that, since deferential review applied, the administrator’s calculation method could not be challenged, since it was a reasonable approach given the plan’s terms and the evidence...
Conducting an ERISA Self-Audit
Posted on December 19, 2007We spend a lot of time here at the blog talking about lawsuits, causes of action, and court rulings concerning ERISA issues; the name of the blog, after all, is the Boston ERISA and Insurance Litigation blog. But every litigator knows that the flip side to a lawsuit is prevention, and the key to prevention in the employee benefit world is the ERISA self-audit, whereby a plan investigates itself to ensure compliance and avoid subsequent government action or private litigation...
California, Fair Share Acts and Preemption: Have We Learned Anything At All?
Posted on December 18, 2007I’ve got a few things lined up this week to talk about, running from long term disability benefits litigation to avoiding ERISA litigation to subprime mortgages, but first I am going to veer off of my planned course to pass along and comment on a pair of interesting posts that showed up in my in-box today...
Choosing a Defendant in ERISA Litigation
Posted on December 31, 1969In the First Circuit, the proper party defendant in an action concerning ERISA benefits is the party that controls administration of the plan; in other circuits, that’s not so plain. The question to which this is the answer is, who do you sue to recover benefits due under an ERISA governed plan...
Some Quirks About QDROs
Posted on December 31, 1969Wow, QDROs (otherwise known as qualified domestic relations orders) are all the rage these days, aren’t they? QDROs concern the intersection of divorce/family law and ERISA governed benefit plans, in particular retirement plans. As a general rule, a QDRO is a court order in a state divorce proceeding that, if it meets certain requirements, has the effect of controlling dispersal of the ERISA governed plan benefits, benefits which, in the absence of such an order, would simply be paid according to the express terms of the ERISA governed plan itself...
The Meaning of Justice Roberts' Concurrence in LaRue
Posted on December 31, 1969There’s nothing really new in this piece for those who have already closely followed and studied the LaRue decision (how’s that for opening with a bang?), but this column on the decision in the April 2008 issue of Metropolitan Corporate Counsel magazine by two Proskauer attorneys is interesting...
On Fiduciary Bonds and Fiduciary Insurance
Posted on December 31, 1969Well, I suppose nothing could be located more squarely at the intersection of the two topics in this blog’s title than the difference between fiduciary liability insurance (which lets fiduciaries sleep at night) and fiduciary bonds (which protects a plan’s assets, rather than insuring the fiduciaries themselves)...
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