Benefits & ERISA Law

Thoughts on Costs and Fees in 401(k) Plans

Posted on May 20, 2009
In 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, 2009
I 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, 2009
I 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, 2009
I 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...

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The Supreme Court, Suffolk Superior Court and Ed Zelinsky, All Commenting on the Breadth of ERISA Preemption

Posted on May 01, 2009
Two 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, 2009
Hecker 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, 2009
We 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, 2009
I 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, 2009
One 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, 2009
Judge 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, 2009
You 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, 2009
I 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, 2009
Is 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, 2009
I 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, 2009
I 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, 2009
There 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...

Blogging on the Business of Benefits

Posted on March 05, 2009

A Handy Guide to the Oversight of Benefit Plans by In-House Counsel

Posted on March 03, 2009

Notes on Hecker v Deere

Posted on February 26, 2009
The 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, 2009
Well, 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, 2009
Still 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, 2009
A 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, 2009
I 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, 2009
Paul 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, 2009
I 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, 2009
I 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, 2009
Holy 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, 2009
Sorry, 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, 2009
When 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, 2009
Here’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...

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