Benefits & ERISA Law

To Be or Not to Be (a Fiduciary, That Is)

Posted on October 07, 2008
I talked about a case last week that addressed the damages aspect of making out a breach of fiduciary duty claim related to stock drop type issues, and pointed out the broad, ambiguous and easy to manipulate nature of a damages claim in that scenario...

A Random Walk Through the Ninth Circuit's Preemption Ruling

Posted on October 06, 2008
Disparate thoughts. Connect the dots. Or maybe more unintended consequences. Take your pick. While many advocates of health care reform cheer the Ninth Circuit’s conclusion that ERISA does not preempt all state pay or play laws, I am a little dubious as to whether this represents anything more than a Pyrrhic victory for anyone actually interested in ensuring that everyone is insured...

Pay or Play Acts, the Ninth Circuit, and the Never Ending Law of Unintended Consequences

Posted on October 03, 2008
Well, my trial this week is over, and I return to the blog with a - cue self-congratulatory, self-promoting note here - win in my back pocket. Last time I tried a case, I complained, tongue firmly in cheek, about the courts insisting on issuing major ERISA decisions while I was not available to discuss them, and they did it again this time around as well, with court decisions and legal developments in this area of the law pouring into my in-box all week...

On Backdating, ERISA, and the Possibly Unintended Consequences of the Diamond Hypothetical

Posted on September 26, 2008
If you have an interest in both ERISA and in well written, logical judicial opinions, I can’t recommend highly enough this opinion, by Judge Gertner of the United States District Court for Massachusetts, in Bendaoud v. Hodgson, deciding a number of issues at the motion to dismiss stage...

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Prior Knowledge Exclusions: An Ever Shifting Line in the Sand

Posted on September 24, 2008
Who knew what and when did they know it? No, I am not talking about the Wall Street bailout; I am talking about something really interesting, prior knowledge exclusions in insurance policies (well, interesting to me anyway). Prior knowledge exclusions basically work like this: they say that there is no coverage under a liability policy if the insured knew or should have known, prior to commencement of the policy period, that activity it was involved in would result in a claim against it...

Fiduciary Duties: It Ain't Easy

Posted on September 23, 2008
With regard to my post yesterday about fiduciaries having the power, authority and motivation to act to protect plan participants, of course, that’s a lot easier for a fiduciary to do if its vendors are giving it advance notice of losses before the rest of the market finds out, and a lot harder to do if a fiduciary is one of the vast majority who aren’t given that advantage...

Joshua Itzoe on Fixing the 401(k)

Posted on September 22, 2008
In an odd coincidence, at the same time Wall Street has been imploding, laying bare valuation and other problems with investments in retirement plans and elsewhere, I happen to have been reading independent fiduciary/401(k) advisor Joshua Itzoe’s book, Fixing the 401(k), which is premised on the idea that 401(k) plans are compromised by inherent, systemic problems, ranging from issues in plan design to the significant impact of fees charged against plan assets (Susan Mangiero, who knows as much as anyone around about valuation, fee, and other issues impacting pension investments, has a valuable review of Joshua’s book here)...

Does a Dying Industry Guarantee Pension Litigation?

Posted on September 18, 2008
This is one of those days in which the possible blog topics come fast and furious, many of them driven by the once every hundred years or so events on Wall Street and what they tell us about both the obligations of fiduciaries of retirement plans and their concomitant ability to live up to those obligations...

ERISA, ESOP and the LA Times

Posted on September 16, 2008
What happens when journalists, Sam Zell, ERISA and employee stock ownership plans collide? Well, at a minimum, you get a really interesting and well written complaint alleging breach of fiduciary duty under ERISA. Here is the WSJ Law Blog post on this, and thanks to the post, here is the complaint itself...

A Top 50 Blog? I Always Thought So

Posted on September 15, 2008
During the Olympics, I read an interview with someone who said he just wanted to be the Michael Phelps of something, anything at all. While my aspirations may not run quite that unrealistically high, its certainly fun to be recognized as one of the top 50 of anything...

Electronic Discovery is . . .

Posted on September 11, 2008
A. Broken; B. Subject to abuse; C. So expensive that it can force settlements even where the merits don’t warrant it; D. An aspect of civil procedure that is still waiting for the courts to create a jurisprudence that will properly manage its potential costs and complexity; E...

Is ERISA Preemption Coming to the Massachusetts Health Care Reform Act?

Posted on September 10, 2008
You know that theme music from the movie Jaws? Cue it up - the sharks are circling the Massachusetts Health Care Reform Act. Hard on the heels of the recent reports that the state is going to have to increase the financial obligations of employers to maintain the near universal coverage called for by the act comes this story noting the same thing I said yesterday, that increasing the obligations the act imposes on employers will likely provoke a preemption challenge...

Massachusetts' Pay or Play Act: The Triumph of Hope Over Experience?

Posted on September 09, 2008
I have said it before and I will say it again: the day they fess up to the real costs of insuring the uninsured in Massachusetts and admit they need to pass that cost onto employers is the day before someone files a lawsuit asserting that the Massachusetts Health Care Reform Act is preempted...

Systemic Losses and Fiduciary Liability

Posted on September 08, 2008
We have all taken note of the run up in filings of very large breach of fiduciary duty cases against plan fiduciaries that are based on the tremendous losses incurred in investments held by plans as a result of the subprime lending mess. The filings themselves are noteworthy, and the numbers, losses and alleged misconduct depicted in them are eye-grabbing, in ways reminiscent of tabloid headlines that focus on the most sensational elements of a story for the purpose of separating readers from their three quarters...

You Can Run, But You Can't Hide From ERISA

Posted on September 04, 2008
Two interesting but different stories that both relate to the broad impact that ERISA has across the workplace. Here, in this first one, you find the story of the Third Circuit concluding that certain death benefits were not pension, but instead welfare, benefits, which did not vest and could be revoked, despite long time practice and the reliance of employees on the benefit as part of retirement planning...

Retaliate for Seeking Benefits?

Posted on August 27, 2008
Probably the only really note worthy decision out of the First Circuit with regard to ERISA while I was out of the office is this one here, in Kouvchinov v. Parametric Technology Corp., which addressed the standards for proving a claim of retaliatory job action in response to a claim for ERISA governed benefits...

Recent Case Law on Extra-Administrative Discovery After Glenn

Posted on August 26, 2008
When people start emailing you to inquire about your health, you know you have been away from your blog too long. Rumors of my demise, however, were premature, as I was simply on vacation; normally I keep up with developments and am able to put up some posts while away, but I didn’t get a chance to this time...

What Patry Has to Do With ERISA

Posted on August 07, 2008
Geez, I hope it isn’t something I said. Some of you may remember that a little while back, in a post discussing why I blog predominately on ERISA and insurance issues but only occasionally on intellectual property issues, I mentioned that there were a lot of terrific intellectual property blogs already out there, mentioning in particular William Patry’s copyright blog...

The End of the Pre-History of Retirement

Posted on August 05, 2008
Here is an entertaining history of retirement in a nutshell, at least up to the new world we inhabit today, in which defined contribution plans govern and employees bear all the risk. What is interesting to note is that this conventional version of the story basically ends with the - effectively, in any event - death of pensions...

A Real World Legal Guide to Issuing Reservation of Rights Letters

Posted on July 29, 2008
Now this is neat. Here is something that, at least to insurance coverage people, is actually pretty cool. In a world in which most published articles in the legal realm take place on a somewhat airy level, we don’t see enough pieces that provide practical information that is useful in dealing with the nitty gritty aspects of day to day work, particularly concerning those aspects of business life that require making practical use of legal standards and controlling principles...

Using Up My Fifteen Seconds of Fame

Posted on July 28, 2008
There were a lot of things on my desk I could post about today, but I am going to take the easy - and self-promoting - way out, and pass along this article from Massachusetts Lawyers Weekly on the W.R. Grace decision out of the First Circuit on the question of standing in ERISA cases, which I blogged about last week...

Notes for a Friday

Posted on July 25, 2008
I thought I would pass along a couple of things of interest that I read this week, before next week starts up with its own events. Taking up where my comments on the status of extra-administrative record discovery in the aftermath of MetLife v. Glenn left off, Roy Harmon has this post on a Ninth Circuit decision pointing out that MetLife v...

Some More Thoughts on the Primacy of the ERISA Plan Document

Posted on July 23, 2008
Judge Gertner of the United States District Court for the District of Massachusetts has an interesting, if brief, ruling that is just out granting a motion to dismiss a severance pay claim under an ERISA governed plan. What caught my eye about it relates back to this post I wrote a few weeks ago, in which I pointed out the need, in litigation planning and counseling concerning ERISA plans, to resist putting undue emphasis on representations that are inconsistent with the actual terms of a plan, because the courts are likely to ignore such statements and to instead simply enforce what is written in the plan documents...

The First Circuit on ERISA Standing

Posted on July 22, 2008
Very interesting case out of the First Circuit the other day on the question of whether former employees satisfy ERISA standing requirements with regard to defined contribution plans. Short answer is they do, but the Court’s analysis and discussion is an interesting open field run across a range of issues that are both explicit and implicit to any consideration of this question...

What Effect Does MetLife v. Glenn Have on Discovery in Denial of Benefit Claims?

Posted on July 18, 2008
Apparently none, at least according to the first ruling on this question I have seen out of a court in the First Circuit. In a ruling by a magistrate judge, the United States District Court for the District of Maine has concluded that MetLife v. Glenn does not change the rules in the First Circuit governing the extent to which - if at all - a party is allowed to conduct discovery beyond the administrative record itself in a denied benefits case governed by the arbitrary and capricious standard of review...

A Middle of the Road Supreme Court?

Posted on July 17, 2008
Here is an interesting article in which a former Solicitor General argues that the popular - and perhaps a little bit intellectually lazy - characterization of the current Supreme Court as “pro-business” may, at a minimum, be overstating the case a bit...

Understanding ERISA Preemption as a Legitimate Congressional Policy Determination

Posted on July 15, 2008
Many, many people object to ERISA preemption, viewing it as some sort of nasty trick that defendants use to avoid liability in ERISA related cases. Do a quick search for ERISA and preemption on Google Blog and you will find that out pretty quick. But to me, they misunderstand preemption, which was a legitimate policy choice by the Congress that passed ERISA to maintain one consistent federal policy and body of law for purposes of employee benefits...

Promises, Promises . . .

Posted on July 10, 2008
Rob Hoskins over at the always interesting ERISABoard has an interesting story about a Second Circuit decision that essentially says “too bad” to a plan participant’s waiver/estoppel theory seeking benefits. The story is consistent with what seems to be a trend in which courts frequently fall back to the terms of the actual plan to decide a dispute, and seem unwilling to allow extrinsic, often but not always verbal, representations to participants to vary or even trump the written terms of the plan documents themselves...

Insurance and the World at Large

Posted on July 08, 2008
I am asked on occasion about the topics of this blog and their connection to my practice, more particularly how I ended up focusing the blog on its two primary subjects. For years, my litigation practice has focused primarily on three areas: intellectual property, ERISA and insurance coverage, in no particular order...

On Intoxication and Accidental Death and Dismemberment Policies

Posted on July 07, 2008
I wrote a long time back about Stamp v. MetLife, a decision out of the United States District Court for Rhode Island on a particular, oft litigated, and unfortunately frequently repeated fact pattern: namely, whether an unwitnessed automobile accident causing death of an apparently intoxicated driver constituted an accident for purposes of ERISA governed accidental death policies...

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