Benefits & ERISA Law

More Supreme Court Interest in ERISA Remedies Cases

Posted on March 13, 2008
The 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, 2008
Still 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, 2008
I 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, 2008
I 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...

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Passing Along an Interesting Blog: Number One

Posted on March 05, 2008
One 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, 2008
Thought 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, 2008
The 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, 2008
I 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, 2008
One 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, 2008
Can’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, 2008
There’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, 2008
Some 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, 2008
As 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, 2008
Interestingly, 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, 2008
One 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, 2008
I’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, 2008
For 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, 2008
Well 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, 2008
We 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, 2008
A 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, 2008
Stories 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, 2008
This 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, 2008
Well, 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, 2008
In 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, 2008
I’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, 2008
People 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, 2008
There’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, 2008
At 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, 2008
Fellow 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, 2008
I 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...

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