ACI's 9th National Forum on ERISA Litigation

Posted By Stephen D. Rosenberg In Benefit Litigation , ERISA Seminars and other Resources
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The American Conference Institute (ACI) hosts a comprehensive ERISA litigation conference twice a year, in New York in October and in Chicago in April. Fall in Manhattan and spring in Chicago. What’s not to like?

Beyond that though, the conferences have always provided a detailed and in-depth look at the hottest current topics in ERISA litigation, and I don’t say that just because I am speaking at the upcoming conference, in April, in Chicago. I also found this to be the case when I was attending in the past, in New York, as a member of the audience. Even most recently, at the 2014 conference in New York, where I spoke as a member of the panel discussing ethical concerns in ERISA litigation, I took a great deal away from the other presentations I attended, including the always interesting judicial panels, in which sitting judges discuss litigation and ERISA topics that have caught their attention.

In April, ACI will hold its 9th National Forum on ERISA litigation in Chicago, where I will be speaking, along with three well-known ERISA litigators, on current topics in benefit litigation. If you are interested in attending, ACI offers a discount to attendees who are invited by the speakers, and I would like to make that offer available to all of you who do me the good favor of reading my posts. If you would like to take advantage of that offer, all you need to do is contact ACI’s Joe Gallagher at 212-352-3220 ext. 5511, before January 30th, and mention my name.
 

How Do You Win an ERISA Estoppel Claim in the First Circuit?

Posted By Stephen D. Rosenberg In Benefit Litigation , Equitable Relief
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I wanted to take advantage of the cold, dark, peaceful days of mid-January (do New Englanders still grow up reading Ethan Frome, with its perfect depiction of a classic, pre-global warming New England winter?) to talk briefly about an important First Circuit decision that slid somewhat under the radar when it was issued just before commencement of the holiday frenzy.

In Guerra-Delgado v. Popular, Inc., issued December 18th, the First Circuit continued its unwillingness to actually adopt estoppel claims in the context of ERISA as viable causes of action, a topic I discussed in detail here. The Court continued, in Guerra-Delgado, its tradition of deciding such claims by finding that, if such a claim could hypothetically exist, the plaintiff in the case before it had failed to make out its elements, a tradition I previously attributed to a desire to wait for a case that truly calls for adoption of the cause of action before acknowledging its existence. The Court, though, gave its clearest description yet of just what such a claim can and should look like; in essence, it described what the case will look like in the future that will finally get the First Circuit to formally acknowledge such a cause of action.

The Court explained that an equitable estoppel claim can be based on statements extrinsic to the plan documents where they concern an ambiguous term in the plan, but not otherwise. Thus, the first hurdle for proving an estoppel claim in the First Circuit – if you are lucky enough to be the lawyer or participant in the case where the Court finally agrees that such a claim exists under the law – is to demonstrate that the plan is ambiguous with regard to a provision related to the extrinsic statement in question. The Court declared (I don’t think we can say the Court “held,” since the Court effectively decided only a hypothetical, as it did not acknowledge the existence of such a claim) that ambiguity exists for these purposes “if the ‘terms are inconsistent on their face’ or the language ‘can support reasonable differences of opinion as to [its] meaning.’” The Court then proceeded to find that neither of these were true with regard to the plan terms at issue in the case before it.

And why should this be the rule (if and when the First Circuit finally approves of such a claim)? The Court gave a cogent explanation:

representations that interpret rather than modify the plan may provide “a narrow window for estoppel recovery.” Law, 956 F.2d at 370. We have observed that “a plan beneficiary might reasonably rely on an informal statement interpreting an ambiguous plan provision; if the provision is clear, however, an informal statement in conflict with it is in effect purporting to modify the plan term, rendering any reliance on it inherently unreasonable.” Livick, 524 F.3d at 31. We have explained that “[t]his is why courts which do recognize ERISA-estoppel do so only when the plan terms are ambiguous.” Id.

Even though it slipped in under the radar, Guerra-Delgado is not a case to be ignored if you are litigating an ERISA estoppel claim in the district courts of the First Circuit. It nicely ties together years of decisions in this circuit related to this topic, at both the appellate and district court levels, that are not always inherently consistent with one another, and gives you the road map for winning such a claim.
 

What Does Spano v. Boeing Foretell About the Future of Excessive Fee Litigation (and about the Future Ruling in Tibble As Well)?

Posted By Stephen D. Rosenberg In 401(k) Plans , Class Actions , Conflicts of Interest , ERISA Statutory Provisions , Fiduciaries
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Tom Clark, who writes the excellent Fiduciary Matters Blog, gave me either a late Christmas or an early New Year's present when he forwarded me, last week, the district court's December 30th decision in Spano v. Boeing, which addressed numerous issues related to excessive fee litigation but, in particular, discussed the relationship of ERISA's six year statute of limitations to those types of claims. Tom has now done both you and me an additional favor in this regard, writing up an excellent post summarizing the decision, sparing me the ordeal of writing my own synopsis and you the time consuming - but rewarding - act of reading the opinion itself. You can find Tom's summary and analysis here.

From my perspective, the most interesting aspects of the decision relate to the impact on the theory of liability and on the defendants' theories of the plaintiffs' precision, at this point, in presenting their case. Tom references the same idea in his post, but I will discuss it in more detail here. For years, one thing that has jumped out from many of the district court and appeals court decisions that have run in favor of defendant fiduciaries and plan vendors has been the extent to which the plaintiffs' allegations and theories were of the blunderbuss variety, in which they broadly alleged conflicts of interest and the existence of both high fees and undisclosed revenue sharing. In many of those cases, the plaintiffs essentially never boiled their claims down to narrow, specific allegations (at the motion to dismiss stage) or evidence backed theories (at the summary judgment stage) supporting the existence of a particular fiduciary breach. As a result, the plaintiffs' theories often had holes large enough to drive a truck through, or, at a minimum, the statute of limitations or failure to prove imprudent conduct or whatever other theory was being pressed by the defendants. In many of those decisions, it was clear that a more narrowly and precisely tailored theory of fiduciary breach could have avoided the defenses raised by the plan fiduciaries, sponsors and vendors, forcing, at a minimum, a trial to resolve the claims (and thus likely a settlement of some nature, given the amounts at stake in many of the cases and corporate America's risk adverse nature and resulting preference for avoiding trials). I could walk you through many of those decisions and show you exactly how a more properly and precisely pled theory of fiduciary breach could have survived the motion to dismiss or for summary judgment that instead sunk the case.

Here, though, in Spano, you see a much more focused theory, which is not based simply on the premise that the fiduciaries had broadly erred by retaining and never dispensing with high cost funds, and did not essentially allege simply that certain types of investment or operational decisions are essentially wrong per se. Instead, what you see is a narrow focus on specific decisions and activities by which the fiduciary duty was breached, forcing the defendants - and in turn the Court - to address not whether the type of conduct in general violates fiduciary norms, but instead whether the particular fiduciaries acted imprudently under the specific circumstances that confronted them; that is a much harder claim to get tossed out by means of motion practice, and the Spano decision reflects that.

This is telling, in many ways, for the future, as the plaintiffs' bar gets better and better at framing fiduciary breach claims. As they get better at identifying, isolating and targeting specific alleged misconduct, their win rate is going to go up, and it won't be as common as it has been for prominent appellate rulings or major trial court rulings to go against them.

One other aspect of Spano that is worth highlighting is the Court's detailed treatment of ERISA's six year statute of limitations, given that some of the funds at issue where first selected more than six years before suit was filed, leading the defendants to seek to bar many of the claims related to those funds on the basis that they were time barred. This is, of course, essentially the issue pending before the Supreme Court in Tibble at the moment, and the Spano Court addressed Tibble and the Supreme Court history of that case in reaching its own determination on the statute of limitations issues. Essentially, the Court concluded that it was not enough to defeat the fiduciary breach claims that the original decisions to offer the funds in question occurred more than six years before suit was filed, so long as the plaintiffs could set forth an actionable fiduciary breach that took place within the six years before suit was filed that concerned the funds, above and beyond simply the preceding, and time barred, decision to offer the funds in the first place. Consistent with the theme of this post, the Court found that the plaintiffs had done so by showing, on the law and the facts, how the defendants had committed fiduciary breaches that post-dated the decision to offer the funds in question and within the relevant six year period; once again, the plaintiffs avoided barriers to recovery that had sunk earlier plaintiffs by focusing on the precise facts needed to keep their claims alive, rather than simply making broad and often un-nuanced allegations that could more easily be found to be time barred. And that, incidentally, is exactly what I think the Supreme Court will do in Tibble, finding that, first, the six year statute of limitations does not forever bar claims if the initial offering of the investment option, or selection of it, occurred more than six years before suit was filed, and, second, that instead the six year period is satisfied in those instances where the plaintiff can show a legally actionable breach within the six year period that is independent of the original decision to offer the investment option.

What's the Difference Between Public Pensions and Union Pensions?

Posted By Stephen D. Rosenberg In Pensions
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In the ways that matter right now, not that much. Here is a more detailed look, by focusing on certain union pension plans, at the move towards cutting benefits in multiemployer pension plans that I talked about in my last post. It’s interesting for the details it provides on these particular circumstances, but it is also noteworthy for a few broader points it brings out. First, note the high return on investment that was assumed for purposes of one of the funds in question becoming solvent. This mirrors a problem that has come to light over the past few years with public pensions: way overly aggressive assumptions with regard to returns as a basis for projecting future solvency. Second, note the demographic problem of too few workers and solvent employers supporting too many retirees: that’s a death spiral problem for any pension fund that doesn’t already have the money in place to cover future liabilities and instead must rely on incoming cash flow to meet those obligations. Third, note the fact-based skepticism about a federal political solution being reached, mirroring the extent to which the public pension crisis is linked to a long term lack of political will, as I noted in my last post. And finally, fourth, note the same key dynamic that is at play in the public pension crisis: do you invest public funds to protect benefits or cut the benefits?

Coming Soon to a Private Pension Near You: Benefit Cuts?

Posted By Stephen D. Rosenberg In Pensions
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So, I have discussed before – many times, actually, in the wake of Detroit and similar experiences with municipal finances across the country – that public pensions pose a moral, political and economic dilemma. They are underfunded (even many of the ones that aren’t in the news) and something, someday, is going to have to give on them. Either benefits will be reduced, even for those already retired, or the taxpayer, in some form or another, is going to have to bail out those pension funds. With regard to public pensions, it is as much a question of political will – and expediency for politicians – as it is a question of anything else (as I discussed here, nothing about recent developments makes me believe that the political arena really has the gumption to solve this and is instead likely to leave it to lawyers and courts to sort out), but this is not a new development at all. Leaving all names out of the story – including even of the state involved – I can recall how, regularly, right before a particular state held its gubernatorial elections, state employee unions would suddenly conclude negotiations with the existing administration over their new contracts, and would receive generous boosts to salary and benefits. This occurred decades ago -I didn’t think it was a coincidence then, and I don’t think it’s a coincidence now. Multiply that by a thousand fold when you think about the current public pensions in crisis (and the many more to come) and you understand both how we got in this mess and how unlikely it is that political entities will deal with the problem proactively, rather than wait until things are too bad to ignore, such as occurred with regard to Detroit.

Well, now it looks more and more like the same calculus is coming into play with troubled private pensions as well, with Congress looking at potentially allowing benefit cuts for retirees under troubled multi-employer pensions. Once again, you have underfunded pension plans and the question becoming whether to cut benefits or rely on the taxpayer to fix the problem, and I probably don’t have to tell you which approach seems to have the upper hand right now (if you can’t guess, read this article). There has been much moaning over the years about the death of the American pension, and this is just the latest act in that long running drama.
 

A Nuanced Look at the Attorney-Client Privilege?

Posted By Stephen D. Rosenberg In ERISA Seminars and other Resources , Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
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This caught my eye, partly because I sat on a panel recently discussing the fiduciary exception to the attorney-client privilege in the context of ERISA litigation. This, in this case, is a Bloomberg BNA ethics webinar on “Attorney-Client Privilege and Work Product Doctrine Issues,” which includes, of particular note to me, “[t]he surprising narrowness and fragility of the attorney-client privilege[,] the nuances of privilege protection in a corporate setting [and the] great risks involved in relying on common interest/joint defense agreements.” Each of these topics is absolutely worthy of review, and each, for various reasons, rings a significant bell for me.

Initially, the need to discuss the narrowness and fragility of the privilege immediately made me think of the old saying that “what’s old is new again.” For my whole career, I am pretty sure, I have periodically been reading articles and reports, sometimes alarmist, about threats to the sanctity of the privilege. But the privilege has never been absolute and was never intended to be, and its exact contours have always been shifting, no different than the beach line on the elbow of Cape Cod. We see this clearly in the ERISA context with the development of the fiduciary exception to the privilege, which leaves open to disclosure many plan communications with counsel to an ERISA plan that occur in a non-litigation setting.

The real issue is not the scope of the privilege or the fact that the scope changes, but that practitioners need to understand the parameters of the privilege as well as the changes to it, and account for them. In speaking engagements, I often reference a particular high dollar value top hat dispute litigated in the district court in Massachusetts in which a prominent law firm’s somewhat caustic comments communicated to the corporate client eventually ended up in evidence at trial, simply because outside counsel did not understand certain loopholes in the privilege. While not outcome determinative in the case, the email in question certainly didn’t help the client’s defense when it went into evidence, something made clear by the fact that the judge quoted it in her opinion. This is why the second part of the webinar’s list of topics caught my attention, with its reference to the “nuances of privilege protection in the corporate setting;” the privilege is in fact nuanced and not absolute, and in-house and outside counsel to corporations need to understand those nuances to avoid exactly the type of embarrassing and harmful exposure of communications that occurred in the case I mentioned above, which I routinely use as my abject lesson for teaching this point.

Finally, the reference to the great risks inherent in common interest and joint defense agreements caught my eye for much the same reason, which is simply this. As with the privilege itself, lawyers and their clients often place too much blind faith in such agreements, believing they safely and fully insulate work done jointly by all those on one side of the “v” in a case. This is not, however, an accurate way to understand it or to approach the issue, as there are a number of variables that can come into play with regard to whether such protection applies and, if so, to what extent, in a particular case. Lawyers and clients need to understand that, and to know what they are, in making use of such agreements and approaches to the privilege, and not simply assume that communications among those parties are all privileged.
 

The Wall Street Journal on Increased Oversight of ESOP Transactions

Posted By Stephen D. Rosenberg In ESOP
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The Wall Street Journal ran an interesting, if superficial, story on tougher scrutiny of ESOP transactions and how that is impacting smaller companies with ESOP programs. As the article pointed out, ESOPs in that context are very much a tool for the owner/founder class to cash out their equity developed by building the business – including for the purpose of transforming the business into a retirement nest egg – without having to go out into the open market to sell it, by instead selling it in an essentially captive transaction to the employees. But the interesting thing about that is that the former – selling the company into the open market – comes with the built in valuation discipline of an open market, with the company having the value that informed buyers are willing to put on it relative to other potential investment options open to those buyers. ESOPs, as a tool for the owner/founder class to cash out their equity, don’t come with the protections and tools for valuing the worth of the company that are inherent in selling into an open market; the pricing, and thus the amount of cash out open to the owner/founders, is instead determined artificially, independent of an open market, by an appraisal process that is supposed to be watched over, on behalf of the employees, by the plan fiduciary.

The Journal article discusses the fact that DOL initiatives in this area are driving up the cost and requiring somewhat more disciplined oversight of the process by companies proceeding with ESOPs. The article, however, references that it is simply driving up the cost of appraisals from an average of $10,000 to $11,000, and that certain legal and related fees are higher for companies that want to ensure that there are no perceived or actual conflicts of interest in the transaction. If that is all the additional cost for ESOPs that are caused by enhancing the protections of employees in such a transaction, then that isn’t much cost at all to give the employees at least some of the protections that the marketplace would give to a third party buyer.
 

Three for Thursday

Posted By Stephen D. Rosenberg In Fiduciaries , Pensions
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Well, some of you may recall that when I joined Twitter, I originally did it so that I would have an additional outlet to point out and comment on the various interesting articles and commentaries that cross my desk.  Twitter, though, turned out to be a two way street, with it driving interesting articles onto my desk at a faster rate than I could use Twitter to push other interesting articles off my desk and out to a wider audience.  Not only that, but in what might reflect more on my personality than it does on Twitter, I have found that I have trouble limiting myself to 140 characters when it comes to talking about many of the articles that catch my eye.

This week was much like others in that respect, with at least three very interesting items landing on my desk (one directly from my Twitter timeline) that I wanted to both pass along and to comment on in more than 140 keystrokes.  So I thought I would steal a heading from FM radio (Three for Thursday, no commercial interruptions, somehow keeps running through my head today) and discuss three interesting items that I think are worth your time.

The first is Mark Firman of Canada’s (how’s that for provincialism?  He’s actually of Toronto, as we New Englanders recognize that Canada, a near neighbor, is in fact a diverse place) excellent article on whether socially conscious investing can be squared with a fiduciary’s obligation to act in the best interest of plan participants.  It’s a well-written and stylish piece, on what in the hands of a less skilled writer court be a dry topic.  More than that, though, in this era of tobacco stocks, environmental risks and consumer boycotts, it’s a timely take on an important issue.

The second is Greg Daugherty’s excellent piece on the Employee Benefits Law Report concerning court decisions finding service providers to plans to, in one case, not be a fiduciary under ERISA and, in another case, to be a fiduciary under ERISA.  Greg’s post highlights a key issue, which is understanding why the outcome was different in each case, which in this instance, had to do with the fact that one of the service providers could alter its compensation level by decisions that it could make with regard to the plan.  The court found this to be enough to render it a fiduciary under ERISA.  Plan sponsors and participants often assume that service providers are fiduciaries, but they often are not, and it’s important to understand when they are and when they are not fiduciaries.

The third is George Chimento’s excellent piece on further operational complications of the ACA for employers, particularly small employers.  George’s article illustrates an important aspect of the ACA for employers: you can’t go it alone.  Operational and compliance issues raised by the ACA are such that employers have to have competent, trusted experts they can rely on when it comes to issues raised by the ACA.

 

Tetreault, Gabriel, and the First Circuit's Reluctance to Recognize Equitable Estoppel in ERISA Cases

Posted By Stephen D. Rosenberg In Equitable Relief
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The First Circuit issued an interesting ruling early last month that touched on a number of issues, but one that jumped out at me was its approach to the question of equitable estoppel claims under ERISA. In Tetreault v. Reliance Standard, the Court rejected an estoppel claim, but once again – as it has done a number of times in the past – refused to come out and recognize estoppel as a viable claim under the equitable relief prong of ERISA. Instead, the Court applied the logical structure of first noting that the circuit has not yet recognized estoppel as a viable cause of action, and then stating that, even if it were to be recognized as a viable cause of action, the plaintiff’s claim would still fail because the plaintiff could not show its elements, namely, in that case, reasonable reliance.

When I first read the decision, I chuckled to myself, wondering why the Court couldn’t just come out in one of its rulings and expressly acknowledge the existence of estoppel as a viable remedy under the equitable relief prong of ERISA. As I said to one fellow ERISA litigator, isn’t it time for the Court to just come right out and say equitable estoppel exists as a claim under ERISA in the First Circuit? After all, we are something like three years on now from the Supreme Court’s ruling in Amara, which clearly seemed to tell lower courts that equitable estoppel claims are part of the traditional forms of equitable remedies captured in the statute’s equitable relief prong.

In preparing for a talk on ERISA litigation to the Boston Bar Association last week, however, I think I came up with an answer to that riddle, and it rests in the Ninth Circuit’s decision in Gabriel v. Alaska Electrical Pension Fund, where that Court surveyed the post-Amara forms of equitable relief open under ERISA. That decision has received most of its attention – for good reason – for the Court’s discussion of the surcharge remedy, and whether it only applies where there was loss to the plan itself and not just to an allegedly misled plan participant. However, Gabriel has another interesting element, which is the Ninth Circuit’s discussion of the equitable estoppel remedy, which that circuit does recognize under ERISA. The Ninth Circuit explained that equitable estoppel requires, in that context, the existence of additional elements beyond the traditional two of a misstatement and accompanying harmful reliance on it, namely the existence of extraordinary circumstances, such as repeated misleading statements by a plan sponsor/employer. 

As I prepared the part of my talk that concerned Amara remedies, I posed the question of why the Ninth Circuit requires such extraordinary circumstances and, further, what that told us about the First Circuit’s reluctance to fully acknowledge equitable estoppel as a claim under ERISA. The answer, I think, lies in the institutional desire to avoid turning every ERISA denial of benefits dispute into a “participant said/employer said” back and forth dispute, with the courts forced to constantly adjudicate the factual question of whether the participant was misled whenever the participant isn’t actually entitled, under the plan’s terms, to the benefits sought by the participant. By adding on additional factors that must be proven to make out an estoppel claim, such as the Ninth Circuit’s reference to extraordinary circumstances, the courts are able to mitigate this risk and limit equitable estoppel claims to the more egregious or most factually viable circumstances. For instance, in Gabriel, when the Ninth Circuit discussed the need for extraordinary circumstances, the Court gave, as an example, repetitive misleading statements by the employer with regard to the benefits at issue or the benefit plan. As an evidentiary bar, this requirement separates the routine case where there is a random misstatement from a low level HR person upon which a plaintiff’s lawyer tries to fashion an entire estoppel claim (which federal court judges have been seeing, and for the most part rejecting, for years) from a deliberate pattern and practice of self-serving conduct that harms participants (and which federal court judges don’t see all that often). These types of additional requirements for estoppel claims under the equitable relief provision of ERISA, above and beyond the standard requirement of reasonable reliance on a misstatement of fact, allow the courts to limit this type of relief, in the ERISA context, to the more egregious circumstances only.

In many ways, doing so makes complete sense, for at least two reasons. First, it harkens back to ERISA’s grand bargain, whereby employers were to be encouraged to create benefit plans by being protected from excessive (I know, I know, the question of when litigation becomes excessive is in the eye of the beholder) litigation, and limiting estoppel claims to only the egregious ones is of a piece with this. Second, it accomplishes what many of us saw as the real benefit – and perhaps judicial purpose – of the Supreme Court’s seeming expansion of equitable remedies in Amara: the granting of a form of relief that would target ERISA’s long standing problem (again, I know, I know: whether it’s a problem is in the eye of the beholder) of harms without a remedy, which lawyers have always used to refer to the fact that ERISA’s limited bodies of remedies left some harms suffered by participants incapable of being remedied by court action. This type of a limited, restricted expansion of equitable remedies with regard to estoppel claims bars opening the courthouse doors to every unhappy participant while still allowing for the possibility of using estoppel to remediate the worst of the harms suffered by participants in circumstances where the denial of benefit and breach of fiduciary duty prongs of ERISA do not offer access to relief.

So to circle back, how does this tie into the puzzle of the First Circuit’s refusal, lo these many years after Amara, to formally recognize equitable estoppel claims under ERISA’s equitable relief prong, despite the opportunity presented, most recently, in Tetreault? The answer, I think, is that the Court is waiting, as the right vehicle for formally acknowledging the cause of action, for the type of egregious fact pattern in which relief by means of equitable estoppel is warranted. Presented with such a fact pattern, the Court will be able to explain what additional factors are present in the case that raise it above the typical type of claims that, I suspect, the Court does not want to capture within the equitable relief prong of ERISA, thus demonstrating and establishing what additional elements, beyond simply a misstatement of fact and reliance, are necessary to make out an estoppel claim under ERISA. In other words, the First Circuit, I believe, is waiting to recognize estoppel as a cause of action under ERISA for the type of case that will allow it to announce what extraordinary circumstances the First Circuit requires for a misstatement to give rise to estoppel, much as the Ninth Circuit identified in Gabriel the extraordinary circumstances that it requires. When that fact pattern finally gets before the First Circuit is when you will see the First Circuit formally recognize estoppel as a theory of liability under ERISA.
 

Clearing Out the Attic of My Mind: Notes From ACI's 8th National Forum on ERISA Litigation

Posted By Stephen D. Rosenberg In Conflicts of Interest , ERISA Seminars and other Resources , ESOP , Fiduciaries , Standard of Review
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With all due apologies to longtime Globe sports columnist Dan Shaugnessy, who would periodically “clean out his desk” by running a column of short bits he had collected, here’s a list, in no particular order, of interesting (to me, anyway) items I took away from ACI’s excellent 8th National Forum on ERISA Litigation in New York City this week, where I spoke on ethical issues in ERISA litigation:

●What a great group of panelists, and thoughtful, educated audience. They reaffirmed my (somewhat narcissistic and self serving) belief that ERISA litigation attracts and holds onto the sharper tools in the bar.

●Day 2 of the conference had an excellent panel on ESOPs, with at least one panelist noting the pervasive problem of conflicted fiduciaries in this area, who may have interests in the outcome of a transaction that are not the same as those of the employee participants in the ESOP. During the course of the day, whether at lunch or by the coffee table outside the meeting room, everyone I spoke to had a horror story about a conflicted ESOP trustee and an ESOP transaction that disserved employees as a result. Isn’t it past time to effectively require the appointment of independent fiduciaries, from outside of the employee owned or soon to be employee owned company, to pass on transactions on behalf of the employee owners?

●I’ve been hearing for years that Broadway is either dead or dying, but you couldn’t tell that from the outdoor advertising at all of the theaters surrounding the conference site. Either all the shows out there right now are the best there’s ever been, or it is truth in advertising, rather than Broadway, that is dead.

●Incidentally, every time I left my hotel I saw a big promo for Bradley Cooper in a new version of Elephant Man on stage. I know everyone’s a critic, but Cooper was the weak link in the American Hustle cast, so I can’t say the promo had me reaching for my wallet.

Nobody knows nothing, at this point, about what impact Dudenhoeffer will have (I exaggerate slightly, as many panelists and audience members had calculated and well-educated guesses as to the future of stock drop litigation). As I discussed with some members of the audience, one wonders whether the class action bar will go forum shopping with regard to the next round of decision making in this area, looking for the most favorable possible venues for the first of the next round of decisions in this area.

●Speaking of the class action bar, those of its members who were in the audience looked amused when a panelist referenced the class action bar as “sharks.”

●There was an excellent panel on the public pension crisis. It looks to me like the problem will inevitably be left to bankruptcy courts and litigators to sort out, which drives home the extent to which the political will and leadership needed to address the problem is absent.

●One of the most interesting panels to me every year is the insurance industry panel discussing fiduciary liability and other insurance matters related to insuring risks and exposures in the benefit plan industry. It lays the complexity of insurance coverage law (which many lawyers find a very complex area) on top of one of the few areas of the law that exceeds it in complexity, ERISA.

●In the time between the insurance panel’s presentation and getting back to my office, what showed up on my desk but a complicated problem concerning the extent of insurance coverage for an ERISA exposure.

●In the time between my own presentation on ethical issues in litigating ERISA cases and getting back to my office, what showed up on my desk but an ethical conundrum I had never seen nor even thought of before. Grist for the next time I give a presentation on that issue, I suppose.

●The judicial panels on the morning of the second day of the conference are always interesting, and it always catches my attention how many times, and in how many different ways, the judges reference their desire to have the lawyers before them simply act courteously and respectfully to each other in the cases pending before them. One judge commented that, from his seat on the bench, it looks to him that “civil lawyers act criminally to each other and criminal lawyers act civilly to each other.”

●In the time between that judicial panel and my own presentation several hours later, I received at least two emails that documented the judges’ concerns in this regard.

●And I bet so did every other lawyer sitting in the audience.

●There are worse places in the world to watch a World Series game than the West Side Palm in NY.

●I really enjoyed the top hat plan litigation presentation, but that may just be me. There is something I have always found fun about litigating top hat and other executive compensation disputes. Maybe it’s the structure of top hat plan cases, which have a very logical order and composition of issues that can be exploited by a litigator. The presentation matched this, with a focus on the step by step elements of creating top hat status and defending against challenges to it.

●And finally, the panelist who discussed standards of review in ERISA litigation and noted that he may be the only person in the room old enough to remember litigating before Firestone was a treat. Firestone was decided in1989, and, despite nearly 25 years of experience, I never litigated benefit disputes in a pre-Firestone environment, so it was fun to hear, even briefly, how the litigants and the courts addressed the standard of review in the days before Firestone (hint: they typically didn’t).