Benefits & ERISA Law

From Preemption to ERISA Standing, and Lots of Things In-Between

Posted on June 30, 2008
Philadelphia, 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, 2008
How 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, 2008
Even 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, 2008
The 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...

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Follow the Numbers: the Evolution in ERISA Law

Posted on June 02, 2008
I 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, 2008
Two 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, 2008
It 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, 2008
Ever 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, 2008
Maybe, 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, 2008
I 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, 2008
Backdating. 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, 2008
On 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, 2008
Here’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, 2008
Here'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, 2008
Workplace 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, 2008
I 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, 2008
I 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, 2008
I 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, 2008
On 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, 2008
Here’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, 2008
Should 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, 2008
Here’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, 2008
What 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, 2008
Wow, 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, 2008
Suzanne 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, 2008
I 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, 2008
Why 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, 2008
Lots 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, 2008
I 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, 2008
My 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...

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