Benefits & ERISA Law

The Ninth Circuit Adopts Moench and Why It Matters

Posted on October 08, 2010
Now here's an interesting tale, namely the story of the Ninth Circuit's adoption of the Moench presumption with regard to breach of fiduciary duty claims alleging that fiduciaries erred by allowing a plan to hold too much employer stock or otherwise failing to act to protect participants from the risk of holding that stock as an investment option...

ERISA and the 401(k) turn 30

Posted on October 06, 2010
I mentioned in a previous post that I am speaking on ERISA issues in a seminar for the Professional Liability Underwriting Society. The presentation is 'I Have to Retire on THIS? ERISA and the 401(k) turn 30,' and its tomorrow, Thursday, October 7th, at 2 pm...

From Studebaker to Stock Drops, in One Lawyer's Lifetime

Posted on October 05, 2010
How cool is this? I have talked in various posts and in seminars, webinars and the like for years about the transition from defined benefit plans to defined contribution plans, and how that integrates with the development of the law of fiduciary liability under ERISA...

On SPDs and Compliance

Posted on October 04, 2010
Compliance is its own reward. I think that's my new motto for one of the underlying themes of this blog, which is the importance of strong operational compliance in running any ERISA governed plan. The return on that investment takes many forms, running from happier - or at least less disgruntled - employees, to better returns on participant and employer contributions, to fewer lawsuits, and to better outcomes on those occasions when a lawsuit is filed...

To access this complete feed in the blog feed reader login or register for free.

A Good Reason to Read Your Insurance Policy

Posted on September 29, 2010
Wow. This is a fascinating insurance coverage story - I know, people who don't practice in that area will email me in droves to tell me there is no such thing, but still - that illustrates some important points. It is the story of the corporate officer of a juvenile facility that was involved, apparently without his knowledge, in bribing a judge to feed kids to the facility, and who has now been found to have no coverage, including of his defense costs, for the claims against him that resulted...

Handling the Impact on Benefit Plans of Corporate Acquisitions

Posted on September 28, 2010
Here is a fine overview of employee benefit issues that arise after a corporate transaction. Of interest to me in particular is the discussion of compliance problems - broadly defined - in maintaining or running off the seller's benefit plans and in amending the buyer's plan to deal with the acquired employees or the coordination of the benefit plans...

Moench, the DOL and the Future of Stock Drop Litigation

Posted on September 24, 2010
I had the pleasure yesterday of presenting the September Advisor Success Webinar for BrightScope, in which I discussed the law and practice of fiduciary liability and exposure in detail. Its for subscribers only and not publicly available, but for those of you in the Boston area who are in the insurance industry, I will be touching on some of the same points when I speak as a member of a panel next month at a meeting of the Professional Liability Underwriting Society; more details on that to follow...

ERISA Preemption and the Legal Services Plan

Posted on September 17, 2010
I have a bias against writing short posts that just, in essence, pass along someone else's work, without additional analysis, commentary or spin, which is good in many ways but does mean that it is tough to post when I am particularly busy at my day job...

Private Attorney Generals and ERISA

Posted on September 09, 2010
Here's an interesting, although at a minimum somewhat overstated, diatribe against 401(k) plans from Forbes, in which the author complains about four specific risks to participants: greater investment risk than would exist investing outside of such a plan; problems with employer or vendor record keeping and management; the possibility of employer failure; and a lack of regulatory oversight, at least in comparison to the extent of regulation applicable to other investments...

You Say Potato, I Say Potahto: When Plan Documents and SPDs Speak Inconsistently

Posted on September 03, 2010
Bravo. In the context of discussing the Supreme Court's grant of cert to a case presenting the question of how to resolve conflicts between plan terms and summary plan descriptions, the authors of this client alert, Lisa Brogan and Joseph LaFramboise at Baker & McKenzie, provide, in only four pages, a succinct yet comprehensive overview of the standards applied across the country to this issue...

Doubling Down: Protecting the Director or Officer Against the Unknown and Unforeseen

Posted on September 02, 2010
Here's a little story that rung an old bell for me, and provides an object lesson on a point I have made in the past in various forums concerning the protections against liability that need to be sought by officers and directors. The story concerns a decision out of the Tenth Circuit finding that a company did not have to indemnify one of its former corporate officers in total for legal fees related to the officer's defense of a securities fraud case, despite a written agreement that appeared to impose such an obligation...

An Emerging Consensus on Arbitrating Complex Commercial Disputes?

Posted on September 01, 2010
Well, I have written extensively on my skepticism about commercial arbitration as a tool for solving commercial disputes, and my belief that the courtroom is a better forum for most complex cases. It would take a lot of links to cover my past discussion of the pros and cons of this type of dispute resolution, and my reasons for thinking it a far weaker forum for a dispute between corporate entities than the courthouse...

An Unfortunately Timely Topic: When Severance Programs are ERISA Plans

Posted on August 09, 2010
Nothing shows up in my practice any more frequently, particularly in this economy and over the last couple of years, than severance packages, and the question of whether a particular severance package program is governed by ERISA. Roy Hoskins, on the ERISABoard...

Interesting Developments in the Insurance Coverage World

Posted on July 29, 2010
I thought I would pass on two interesting insurance coverage stories, with some thoughts on each. The first is this one here, about the New Jersey Supreme Court finding that an insurer that loses an insurance coverage action can be ordered to pay attorney's fees incurred by the insured in a separate but related coverage action in another jurisdiction...

Pay Now and Later: High Plan Fees Pose an Increasing Risk of Fiduciary Exposure

Posted on July 26, 2010
Chip, chip, chip. No, that's not the sound of the polar ice caps shedding ice, although I suppose it could well be. It's the sound of the Fortress Europa that some of the more optimistic lawyers for 401(k) plans thought was being enacted against excessive fee claims - in the wake of cases such as Hecker - slowly being whittled away...

Breach of Fiduciary Duty Litigation: When the Best Defense is a Good Offense

Posted on July 16, 2010
Anyone who writes anything for a long time, as I have this blog, cannot help but end up with certain recurring themes. When it comes to the management of 401(k) and similar plans, one of those themes has been the importance of compliance and a careful decision making process by fiduciaries, an idea borne out of this litigator's belief that, in the courtroom, the best defense is a good offense...

Small Plans Don't Always Have Small Problems

Posted on July 07, 2010
This is an interesting small piece out of Reish and Reicher highlighting the fact that smaller plans, with relatively small asset pools, face many of the same risks and problems that are faced by the large plan sponsors involved in the bold face cases that show up on a daily basis in the media...

Could the Deepwater Horizon Alter the Trajectory of ERISA Stock Drop Litigation?

Posted on June 29, 2010
BP has a giant employee savings plan, making it a prime target for stock drop type ERISA breach of fiduciary duty claims in light of the Deepwater Horizon leak, as I mentioned here in this post, and the lawsuits and the investigations that will eventually result in lawsuits are coming out of the woodwork as fast as vampires in one of the Twilight movies...

Statute of Limitations and Denial of Benefit Claims

Posted on June 25, 2010
Here is an excellent and very educational post that I wanted to pass along from the Florida Insurance Blog on the statute of limitations applicable to denied benefit claims under ERISA. It is an issue that is often not as straightforward as it either appears or should be, as the Ninth Circuit case addressed in the post illustrates...

The Envelope, Please . . .

Posted on June 23, 2010
Funny that I referenced the Oscar Awards the other day in a post, as I just found out this blog has been nominated as a top insurance blog by LexisNexis. You know how all the Oscar nominees who don't win always say its an honor just to be nominated? I never believe them - I am in this to win! You can see the full list here, and thanks to my producer, the director, the guys at UTA, my agent, the academy ...

Can the Deepwater Horizon Spill Sink the Fiduciaries of BP's 401(k) Plan as Well?

Posted on June 21, 2010
Well, someone thinks so. You can count me, though, as monstrously skeptical that you could tag the fiduciaries of the BP 401(k) plan with breach of fiduciary duty for overexposure to company stock because they failed to expect the Deepwater Horizon explosion and account for it by greater diversification...

ERISA Preemption: Depends on What You Mean by the Word Relate

Posted on June 17, 2010
I really, really like this opinion, to paraphrase Sally Field's perhaps most famous line (or perhaps not, since she never actually said it.)  I like it because it deals really well, and out of a highly respected court, with a question that often bedevils not just courts, but also lawyers trying to determine the scope of preemption, which is how close does a state law claim have to come to impacting an ERISA governed benefit plan for it to be preempted on the thesis that the state law claim 'relates' to the benefit plan...

The Attorney-Client Privilege in Insurance Litigation

Posted on June 15, 2010
My in-box, like most of you I assume, is inundated on a day in, day out basis with offers of webinars, seminars, and the like on every topic under the sun that the sponsors think I might even conceivably have any interest in or professional connection to...

On Named and Functional Fiduciaries

Posted on June 04, 2010
I have been a fan of Scott Simon's Morningstar articles on the various fiduciary relationships among those who run plans and those who advise them. This one here is a good, practical, business oriented view of the different forms of fiduciaries - named and functional (or deemed) - in 401(k) and other plans...

The Future After Hardt

Posted on June 02, 2010
Well, everybody and their mother's lawyer has an article, blog post or client advisory memo out on the Hardt case, and I suspect that is because, frankly, its about as easy a Supreme Court decision to understand as you can find. What's it hold? Procedural victory requiring remand of an ERISA denied benefit claim is sufficient to justify an award of attorney's fees to the claimant so long as there is some substantive achievement by the claimant in moving his or her case forward...

Hardt, A Unanimous Supreme Court, and the Perfect Example of Why Remand Is Enough of a Win to Support an Award of Attorneys' Fees

Posted on May 24, 2010
I posted recently on the Supreme Court's consideration in Hardt v. Reliance Standard Life Insurance of the question of just how much success on the merits is necessary to trigger a plan participant's right to an award of attorneys' fees, and discussed the fact that requiring an outright and complete win by the plan participant is likely too high of a standard for a fair and equitable system...

What's a Good ERISA Lawyer Worth, Anyway?

Posted on May 11, 2010
That's what this case here begins to answer, at least in the Boston market and in the context of the fees that should be awarded to a prevailing plaintiff. This case was intended to be the next in the series of recent Massachusetts/First Circuit centric decisions I started writing two weeks ago, and haven't returned to since...

What Conkright v. Frommert Means

Posted on April 27, 2010
Well, I guess this wouldn't be much of an ERISA blog if I didn't put up a post about the Supreme Court's decision in Conkright v. Frommert, on the question of whether an administrator continues to be entitled to deferential review when it has already had one interpretation of the challenged plan terms rejected by the court under that standard...

When Does a Flaw in an Administrative Appeal Render an Administrator's Denial of Benefits Arbitrary and Capricious?

Posted on April 14, 2010
There have been a series of interesting ERISA decisions over the past several weeks out of the United States District Court for Massachusetts, whose Boston courthouse I can see through my office window as I type this post. The decisions have stacked up on my desk a little bit, like a leaning tower of paper...

An Employer's Guide to Health Reform

Posted on April 12, 2010
I expect to be litigating, down the road, issues, complications and conundrums created by health care reform. Let's be honest - its impossible to imagine any large structural undertaking not generating problems, including unforeseen ones, that will have to be resolved by the courts...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.