Benefits & ERISA Law

Two Farmers Walk Into a Trial . . . .

Posted on November 20, 2009
Well, just finished a trial, which has kept me from posting for a week or two, and I don't have anything substantive to say about the topics of this blog today. I thought, though, that I would share a humorous anecdote told by a witness at my trial, who used it to illustrate a defendant's habit of raising serial defenses, one after the other, and each less plausible than the one before: Two farmers live next door to one another...

The Case of the Billion Dollar Typo

Posted on November 05, 2009
Well, 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, 2009
To 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, 2009
This 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...

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Harmon on Delegation of Fiduciary Duties in the First Circuit

Posted on October 22, 2009
Just 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, 2009
Many 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, 2009
I 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, 2009
Here'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, 2009
When 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, 2009
Geez, 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, 2009
For 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, 2009
I 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, 2009
I 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, 2009
Here'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, 2009
I 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, 2009
It 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, 2009
So, 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, 2009
Little 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, 2009
I 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, 2009
Here'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, 2009
Here 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, 2009
Oops. 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, 2009
File 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, 2009
Last 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, 2009
I 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, 2009
Maybe 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, 2009
Just 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, 2009
Well, 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, 2009
Kevin 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...

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