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.
 

Why Commonality is Relatively Easy to Prove in ERISA Class Actions

Posted By Stephen D. Rosenberg In Class Actions , Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
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One should never underestimate the fundamental role that procedural and related tactical issues play in a case, and how they impact the very question of whether a plaintiff will ever be able to have a judge or jury rule on the merits of a case. Procedural barriers to prosecuting particular claims can be the end of a case, without anyone ever hearing the merits of the dispute, unless a plaintiff can hurdle them. In a sense, this phenomenon means that a plaintiff often has to prove two parts, broadly speaking, of a case to win: first the procedural and tactical niceties needed to even get the case in front of a fact finder, and then the actual merits. In what is sort of a mirror image, a defendant can prevail in a case simply by winning either one of those parts of the case.

This phenomenon means that there are procedural opportunities for a defendant to prevail without ever proving the merits of the defendant’s case, but, interestingly enough, this does not exist in reverse: there really is no such thing as a procedural advantage that might allow a plaintiff to prevail without ever proving the merits of the case (other than an outright default by a defendant, but that really doesn’t happen unless the defendant is judgment proof which, for a plaintiff, is the same thing as losing).

Nowhere is this phenomenon clearer than in class action litigation, in which lawyers and courts have taken to focusing on the procedural requirements for forming a class, in ways that to some extent tend to devalue, by comparison, the merits (or lack thereof, as the case may be) of what the putative class representatives and the class itself may have to say. This approach to class action litigation essentially gives pride of place to the propriety of forming a class, over the merits of the case. If the plaintiffs cannot get past this procedural hurdle, they will never get the merits of their case heard; simultaneously, if defendants can ensure that plaintiffs don’t get past that hurdle, then they effectively win without anyone ever getting to the merits of the claims.

Commonality – which is the requirement that the class members have some central part of their claims against the defendant in common – is the central focus of this aspect of class action litigation, but it has a less than great track record in precluding certification of classes in ERISA cases. There is a clear and interesting reason for this, but it is best approached by the back door, by first explaining how defendants faced with ERISA class actions attack commonality, and seek to use the requirement of commonality to preclude certification of a class and thereby end class action litigation before the merits of the action are reached.

As explained in this excellent blog post, there are a number of ways to attack commonality in an ERISA class action, by focusing on what may be different among the members of the proposed class. I like the article a great deal as a handy checklist for where to start with regard to investigating and challenging the existence of commonality – and by extension the propriety of forming a class – in ERISA litigation.

However, in the ERISA context, one should not be fooled into overconfidence by these types of lists or, as well, by the fact that this procedural tactic has been very effective in various types of class action cases. Commonality is simply not that difficult to prove in ERISA litigation, in comparison to other types of proposed class actions, such as wage cases. This is because, in general, breaches of fiduciary duty related to an ERISA plan affect all participants and beneficiaries in the same manner, which renders the ERISA violation at issue common to all members of a proposed class. The only real trick in this regard is for the plaintiffs to make sure they account for any aspects of the breach in question that might render only some participants (for instance, those in the plan during a certain time period) and not others subject to the violation, and to then draw appropriate lines around the makeup of the class so as to laser out any plan participants who were not affected and harmed by the particular conduct in question. Do this, and commonality exists.
 

The Fiduciary Exception to the Attorney-Client Privilege: What It Is and Why It Matters

Posted By Stephen D. Rosenberg In Benefit Litigation , Class Actions , Employee Benefit Plans , Fiduciaries , Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
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One of the great advantages a Massachusetts ERISA litigator has is that our federal magistrate judges are very good with ERISA issues, which is something that is well illustrated by this decision on the scope of the fiduciary exception to the attorney-client privilege in ERISA litigation. In Kenney v. State Street, the magistrate judge dealt, in a very clean and easily understood manner, with the key issues that come into play under that doctrine, which have to do with its borders: to be exact, what attorney-client communications are subject to disclosure under this exception, and what ones are not. This is a more complicated issue of line drawing than it might appear at first glance because, in essence, you are considering the same course of communications, between the same lawyers and the same plan representatives, dealing with the same general topic (the plan’s operations), sometimes as part of the same in-person meeting, and deciding where the line falls as to the communications that must be produced and those that do not have to be produced.

The takeaway from Kenney on this line drawing is summarized nicely in this blog post by an unidentified Paul Hastings lawyer or two:

First, the attorney-client privilege is available for settlor matters, such as "adopting, amending, or terminating an ERISA plan" because those decisions do not involve ERISA fiduciary functions of managing or administering the plan.
Second, the attorney-client privilege is available to a plan fiduciary who seeks the advice of counsel in response to a threat of litigation by plan beneficiaries (or the government) against the fiduciary.

This is not an issue, by the way, that is just of academic interest, or something for clients and litigators to be concerned about after the fact, when a lawsuit is pending. A few years back there was a major top hat plan case in which some of the key evidence relied upon by the plaintiff consisted of emails and communications between the plan sponsor and its lawyers that were discoverable under these standards: that evidence was very helpful to the plaintiff, and was information that simply should not have been communicated in the manner it was (without, for instance, context and qualification) if it was ever going to see the light of day, rather than being forever cloaked behind the attorney-client privilege. Plans and their outside ERISA lawyers, who on a day to day basis in establishing and running a plan are typically not litigators, need to remember that their communications can end up in a courtroom in later litigation that cannot even be foreseen at the time of the communications in question, and should be careful with regard to the accuracy, context, phrasings and tone of such communications as a result.
 

Player Safety and the Absence of Guaranteed Contracts in the NFL

Posted By Stephen D. Rosenberg In Class Actions , Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
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I don’t want to turn this into a sports law blog, or – heaven forbid – an NFL blog (heaven knows, there are more than enough of those), but the latest work of the Washington Post on player injuries was too good to ignore. I promise, after this one, I will go back to ERISA and insurance blogging. However, those of you who have read me for awhile on the real subjects of this blog know that I am a fan of data. You want to convince me of something, show me data, and your reasoning, sources and the methodology behind it; I have little use or interest in argument by anecdote.

In “Do no harm: Retired NFL players endure a lifetime of hurt,” their latest article on the NFL’s problem with seriously injured players, the Washington Post’s Sally Jenkins, Rick Maese and Scott Clement detail survey findings as to the post-career injuries and physical conditions of retired NFL players. You should read it – the findings should be enough to dissuade anyone from continuing to think that retired NFL players with serious health issues are the outliers, rather than the norm. I often think that the articulate, well-dressed, well-off, clearly not that injured retired players on ESPN’s pregame shows and the other network’s football shows leave us with the impression that they, and not the injured and complaining retired players, are representative of the population of retired players. The Post’s survey data should make clear that is not the case.

To me, the most interesting aspect of the story is the players’ refrain that they constantly felt it necessary to play while injured (and with injuries serious enough that most of the general population would be out on long term disability benefits if they suffered from them) out of fear they would lose their jobs otherwise. The reason for this, they consistently explain, is the fact that NFL contracts are not guaranteed, and thus, if they lose their roster spot, they lose their livelihood. The Post quotes one former player thusly: “If you don’t play, they don’t pay. You will get cut if you are not on the field. That is why we play through injuries: we have to feed our families.”

Frankly, the fear that ownership will terminate them if they are injured and can’t work sounds more like an issue from late nineteenth century mining in this country than from a modern workplace (if you have ever read J. Anthony Lukas’ “Big Trouble,” than you know what I am talking about; if you haven’t read it, you should). And its easily fixed – just make NFL contracts guaranteed, like they are in other major sports, and the fear of losing their paychecks that drives players to play while seriously injured disappears.

In the Post’s series of articles and in articles elsewhere on the subject, NFL representatives claim they are working to make the game safer and to better take care of players and retired players, but point out that it is slow work. The Post’s article includes a discussion of this point:

The league is also conducting an ongoing campaign to reform what executives say is a “culture” of playing through pain.“That culture has existed and it needs to change,” said NFL Executive Vice President Jeff Pash. “That is a big part of what Commissioner [Roger] Goodell is trying to do. We’re trying to move toward a player safety culture. It’s going to take time, but I think we’re making progress, seeing them being more honest about their injuries.”

Making contracts guaranteed can be done almost instantaneously, and would significantly alter the culture of “playing hurt.” The NFL often likes to hide behind the collective bargaining agreement (“CBA”) as a reason why certain things can or cannot be done: I have little doubt though, that even to the extent changing to guaranteed contracts might relate to the CBA, that the players would agree pretty much immediately to amend the CBA to allow them, or even better, to mandate them.

I will tell you one thing. If I was representing the retired players in any of the class actions being prosecuted against the league for safety related issues, the first thing I would do when the Commissioner or anyone else testified that they were working to improve the situation, is cross them on why, if that’s true and the jury should believe them on that, they still don’t have guaranteed contracts that would give players some security in deciding to sit out when injured.
 

Lessons on Intellectual Property Litigation From the Baltimore Ravens Defense

Posted By Stephen D. Rosenberg In Copyright Infringement , Intellectual Property Litigation , Patent Infringement , Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
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This is a great story on long running copyright litigation between the Baltimore Ravens football club and a security guard and doodler, over the rights to the Ravens’ emblem. The court bifurcated the case, with liability being tried first. The jury in the liability portion of the case found infringement, but the next jury, in the damages portion of the case, awarded nothing in damages, finding that the plaintiff was not injured by the infringement. I bring this story up for three reasons. The first is that it is a just plain, good old fashioned read, even if you don’t care one bit about copyright law or, perhaps even more unforgivably, the Ravens.

The second though, is the more important one. I have done a fair bit of patent and copyright litigation (especially the latter) over the years, almost exclusively for defendants, and it is a lot harder to actually win and recover significant money on copyright infringement claims than many people – including most lawyers – believe. The headline stories of massive awards in patent infringement cases lead people to extrapolate across the board to other types of intellectual property cases, but those cases don’t actually extrapolate well. The various defenses available to defense counsel in copyright infringement cases makes for a tough road in that area for plaintiffs (much to my happiness, I admit, when I am representing copyright defendants).

And finally, the third point the article drives home is this one. When representing plaintiffs in intellectual property cases, always think twice before deciding to accept bifurcation without a vigorous battle. Its hard enough to convince a jury to find infringement, but once having done so, it is better to move onto damages in front of that same jury, with whom you have presumably already established credibility. Bifurcation forces the plaintiff to reestablish that credibility, and any sympathy, all over again in front of a new jury, and causes the plaintiff to lose whatever momentum led to the liability verdict in the first place. All trial lawyers have their own pet theories; that is one of mine.
 

Using the Economic Loss Doctrine to Defend Company Officers

Posted By Stephen D. Rosenberg In Directors and Officers , Fiduciaries , Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
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One of the interesting aspects of litigating ERISA cases is the extent to which, for me anyway, it is part and parcel of a broader practice of representing directors and officers in litigation. From top hat agreements they have entered into, to being targeted in breach of fiduciary duty cases for decisions they participated in related to the management of an ERISA governed plan, directors and officers of all size companies spend a lot of their working life operating – in terms of legal issues – under the rubric of ERISA. In some ways, this is even more true of officers of entrepreneurial, emerging or smaller companies; due to the relative lack of hierarchy or distinct departments, in comparison to the largest corporations, officers of these types of companies often find themselves involved to one degree or another in almost every aspect of the company’s business, including retirement and other benefits that are likely to be governed by ERISA.

For me, one of the more interesting aspects of representing officers and directors in litigation is the question of when, if ever, they can be reached personally for actions that one would otherwise expect to be the responsibility of the company itself. Although lawyers are all taught in law school about the sanctity of the corporate form and the protection against liability it grants to company officers, lawyers quickly learn that, in practice, that is a principle more often honored in the breach. Both common and statutory law offer plaintiffs various ways around the protection of the corporate form, including, when it comes to retirement or benefit plans, breach of fiduciary duty claims under ERISA. The theories of piercing the corporate veil and participation in torts can also be exploited to avoid the shield against liability granted by the corporate form in many types of cases, although those can be difficult avenues to use to impose liability on a corporate officer.

 

All of these issues have one thing in common, which is a question of line drawing, consisting of determining exactly where the line should rest between the protection of the corporate form and the ability to impose liability on a company’s officers. One aspect of this line drawing that has always held great interest for me is the economic loss doctrine, which holds that contractual liabilities cannot be used as the basis for prosecuting tort claims. In the context of defending officers and directors against claims for personal liability based on a company’s actions, it serves as a strong defensive line against imposing tort liability on a corporate officer for the contractual liabilities and undertakings of the company itself. You can find a good example of this defense tactic in this summary judgment opinion issued by the business court in Philadelphia last week in one of my cases, in which I defended a corporate officer in exactly that type of case.

Empirical Proof of What I Always Thought (And Said): The Benefits of Litigation over Arbitration

Posted By Stephen D. Rosenberg In Arbitration , Coverage Litigation , Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
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This is great. I have lost count of how many times I have explained my view that arbitration is not, by definition, preferable to litigation for resolving disputes, and that instead, in each and every given case, a party should think carefully about which dispute resolution forum is preferable. I have written and spoken on the idea that, initially, company decision makers should put aside the assumption that arbitration will save money, because it generally does not. There are more controls on the litigation process than are built into the arbitration process and, as a result, if one side or another is interested in bogging down the process in excessive discovery, motion practice, or other efforts, they can more easily run up the costs in an arbitration than they can in litigation. Arbitration, as a result, is only less expensive if both parties set out in good faith to make it that way. If one party sees a tactical benefit in doing otherwise, though, the dynamics of arbitration make it far too easy to turn arbitration into an expensive, time consuming, seemingly never ending event. Judges, as a general rule, won’t allow this to the same extent in court.

Second, there are tactical considerations in deciding between arbitration and litigation, which have to do with the strength of a party’s case, and whether that strength is based on legal arguments or instead on facts. It is my view that a case based on legal theories is better prosecuted in court, for at least two reasons. First, motions to dismiss and summary judgment are effective avenues in that forum to have the court rule, relatively early on, as to the strength of those legal defenses. Arbitration panels are, for various reasons, more often inclined to hold all such issues over for the final hearing, eliminating the possibility of an early outcome without having to engage in a full evidentiary hearing on the evidence. In my experience, the only real consistent exception to this dynamic in arbitrations is when the arbitration panel is chaired by a well-regarded retired judge, who may be inclined to incorporate more of the courtroom structure into the arbitration process. Second, in a case built on legal theories, it is always better to have a second chance to press that theory if it is rejected the first time around, which litigation allows by means of appeal. Arbitration generally doesn’t allow that, as state arbitration acts and the Federal Arbitration Act generally impose very limited rights of appeal from arbitration rulings.

In this excellent article in Inside Counsel, authors Alan Dabdoub and Trey Cox provide empirical support for these views, which have, until now, been based simply on my own years of arbitrating and litigating cases, and of observing the difference between the two. The authors use a comparative study of 19 different cases, about half in arbitration and about half in litigation, to demonstrate that litigation, and not arbitration, can often be the faster and less expensive path for resolving disputes. It is well worth a read.
 

Working Backwards From a Closing

Posted By Stephen D. Rosenberg In Intellectual Property Litigation , Patent Infringement , Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
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This is a very entertaining and interesting piece from AON’s Mark Hermann, leaving aside any qualms about the seriousness of the website that published it. In it, Hermann makes the case for litigation counsel to provide overviews to their clients structured around the question of how they plan to win the case, rather than just by providing an overview of the case and its history. I will take his thought one step further, and argue that every single thing a litigator does on a case should be done with that in mind; that, in essence, every decision in a case and every step taken should be subject to a litmus test of whether it gets the client one step closer to winning the case. In many ways, that was the thesis of this article of mine, on patent infringement litigation, in which I discussed the difficulties of cost faced by smaller companies forced to litigate such cases. Having litigated a number of intellectual property cases – including trying a patent case – for smaller and emerging companies who were facing off against deeper pocketed rivals, I knew that the key to cost containment was to focus strategy, discovery, expert issues, and motion practice only on the pieces needed to win at trial or summary judgment, and to avoid the siren song of pursuing interesting but expensive and likely not important side issues in the case. As I explained in the article, costs could be controlled by focusing only on the themes and issues relevant to winning, rather than pursuing every possible thing that could, but probably would not, affect the outcome of the case.

This approach – which Hermann likens to focusing on the closing of a trial – can and should influence everything a trial lawyer does, from the reporting to the client that is the focus of Hermann’s piece to discovery strategy to motion practice, all the way up to trial. If it doesn’t matter to winning, or to preventing the other side from winning (to the extent the two concepts aren’t entirely co-extensive), than it is has no purpose in a case. Deposition practice, for instance, is a perfect example. Sure, there are instances in which a deposition is taken just to get background information and understand what actually occurred. For the most part, though, depositions involve witnesses who have a known role in the events at issue and in those instances, I almost never ask a question that doesn’t already fit my plan for one of three things: what I am going to prove to obtain summary judgment, what I am going to use to prevent the other side from obtaining summary judgment, or what I am going to prove at trial. When it comes to a deposition, if a lawyer cannot explain how a particular question or answer fits into one of those three rubrics, 90% of the time the question and its answer has no purpose in the case, and serves only to extend the length of depositions and the cost of discovery to clients.

You can carry Hermann’s concern across the entire length of a case, from beginning to end. And, as Hermann suggests and my article on patent infringement litigation focused on, you can use that concern to reduce legal costs and get better results, all at the same time.
 

Litigating Executive Compensation Disputes

Posted By Stephen D. Rosenberg In Benefit Litigation , Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
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Is there a more hot button topic in the world, just as a general principle, than compensation, especially of the executive kind? From Salary.com to the outrage of politicians over financial industry pay, the subject is never far from your internet browser. In fact, just for amusement’s sake, I just googled executive compensation, and the first page of results had no less than three links claiming to tell me what executives throughout the country earn.

Of more interest to me professionally than what executives earn, though, is what happens when they end up litigating disputes with their employers over their compensation. ERISA often gets dragged into such disputes, although there are an increasing number of judicial decisions – though still few – questioning whether individual agreements with executives to set compensation should fall within ERISA, rather than being handled as pure breach of contract cases under state law. The forum, venue, nature of defenses, potential damages, and strategy in such disputes can all be greatly affected by whether the dispute should be governed by ERISA or is instead simply an old fashioned state law dispute.

I will be talking about this and more next week when I address the details of litigating executive compensation disputes in this MCLE seminar. Two other excellent speakers, Marcia Wagner and Philip Gordon, will be discussing various aspects of crafting and negotiating executive compensation agreements – I will then weigh in on what happens when that work, as it sometimes does, leads to the parties suing each other.

You can find registration information for the seminar itself and for the webcast here.
 

The IRS - A Safe Port in a Storm for Plan Fiduciaries (Sometimes, Anyway)

Posted By Stephen D. Rosenberg In Benefit Litigation , Fiduciaries , Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
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Well, as if there weren’t enough barriers to successfully prosecuting breach of fiduciary duty actions under ERISA, it turns out that you also can’t do it if the fiduciary’s errors consisted of wrongfully withholding benefits and turning them over to the IRS as tax payments. A participant, according to this opinion fresh off the presses of the Northern District of Illinois, can only remedy that mistake by getting the IRS to refund the money to them.

Defense lawyers are always fond at trial of having an empty seat – i.e., a missing potentially culpable party – to point to while saying my client didn’t do it, the person that should be sitting in that other chair at the defense table did. For those of you old enough to remember it, this defense theory is similar to, but not exactly the same as, the famous “Plan B” of noted fictional defense lawyers Donnell, Young, Dole, & Frutt, who somehow always managed to make that strategy work. For a plan fiduciary charged with fiduciary breaches or other errors related to tax aspects of a plan, pointing to the IRS and saying the participant’s only recourse is to seek a refund from the IRS is an extraordinarily potent variation of this defense. It also, as the decision in Mejia v Verizon et al appears to make clear, has a sound foundation in the federal code.
 

When An Expert Deviates

Posted By Stephen D. Rosenberg In Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
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Here is a little inside baseball for a Monday afternoon. No, not this kind of inside baseball – this kind. Its not really an ERISA story, at least not in any direct sense, but it is important to ERISA litigation nonetheless, for reasons I will get to in a moment. What I am referring to is this decision out of the First Circuit on the use of experts in a case that one of my colleagues, Robert La Hait, won the other day. Although it involves a dispute over an accidental death and dismemberment policy, a coverage some people obtain through their employers, the decision isn’t about ERISA rights or remedies, but rather about the extent to which an expert can testify at trial under the federal rules in a manner that deviates from the expert’s written report. Now, you have to remember that the rules themselves seem to suggest that, if something isn’t in an expert’s report, it can’t be said at trial, and there are certainly some district court judges who make clear that, at least in general principle, that is how they see it (I am not going to name names to protect the innocent, namely me). But the First Circuit ruling holds that there is some room for an expert to deviate from the written report disclosed to the other side, within reason and subject to the limits laid out in the decision. Its certainly worth a read, under any circumstance, for anyone who litigates expert intensive cases in the federal courts.

Beyond that, though, there is one specific hook in this case, that links it right back to ERISA litigation. Many areas of ERISA litigation raise significant issues that have to be addressed through expert testimony, including, for instance, financial expertise in breach of fiduciary duty cases involving investment selections, fees, and the like. The scope, accuracy and admissibility of expert testimony can become key, even outcome determinative at times, in ERISA cases, particularly breach of fiduciary duty cases. Several years ago, for instance, I was representing a third-party administrator charged by a plan sponsor with poor performance, and the case didn’t turn my client’s way until the eve of trial, when the court began seriously entertaining our challenges to the admissibility of the expert testimony proffered by the plan sponsor; it was the undercutting of that testimony that effectively ended the case. I tell this story for a reason, which is this: while the legal arguments about fiduciary standards and the like are important, it is equally important to pay attention in an ERISA case to the mechanical, nuts and bolts details of litigation (such as the admissibility of expert testimony) that lies at the heart of all federal court litigation. You can win or lose an ERISA case by falling down on either one of those points. This First Circuit ruling is a good example of one of the litigation details that cannot be missed while arguing over the complicated legal issues inherent in an ERISA case.
 

Lies, Damn Lies, Baseball Statistics and Wal-Mart

Posted By Stephen D. Rosenberg In Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
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I don’t know, maybe I had something rattling around in my brain about statistics in light of the then still pending Wal-Mart case when I wrote my last post, ostensibly about the use (and misuse) of statistics in baseball analysis, and less ostensibly about the use (and misuse) of statistics in litigation. I certainly wasn’t conscious of any concern on my part about the Supreme Court and Wal-Mart when I wrote that post, but the post now seems to have an air of precognition to it, at least in hindsight (one wonders whether it is possible to have precognition in hindsight, given the dictionary definitions of those words, but nonetheless). I particularly wasn’t thinking about Wal-Mart when I wrote that post because, like most casual observers of that case, I had long ago come to think it of as a case about class certification and class action requirements, and not about issues such as the proper role of statistics in litigation.

Regardless, one of the most interesting things right off the bat to me about the Court’s ruling in Wal-Mart is the extent to which its rejection of the statistical evidence at issue mimics the views of statistics in litigation that permeate my post on baseball statistics. As both the Court’s decision and that post suggest, there is no legitimate basis to rely on statistics when they do not, in fact, establish factually a specific point that could not otherwise be proven in a different manner of presenting evidence. This is another way of saying that statistical analysis does not belong in a court case, at any stage, if it does not illuminate – and do so accurately - a point that could not otherwise be shown.
 

Lies, Damn Lies and Baseball Statistics

Posted By Stephen D. Rosenberg In Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
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I am going to take a flyer, because after all this is my blog, and post a digression that really has nothing to do with the subjects of this blog, other than the fact that it relates to the significance of statistics and their impact on litigation, including financial litigation involving ERISA plans. I have talked before about the extent to which the role of statistics in this area – as in all of litigation, frankly – can quickly move the parties into the netherworld of half-truths, inaccurate modeling, and misleading statistic-based assumptions that spawned the well-worn phrase “lies, damn lies and statistics.” The phrase, for those of you not that familiar with it, basically reflects the idea that statistics, used for evil rather than good, can be used to try to show to be true something that is, in fact, not so, and that absent the cover of statistical analysis and complexity, would be seen quickly as either a lie or a damn lie.

This problem permeates litigation, whenever one moves into areas that require extrapolating from a small set of examples, such as determining damages across an entire class based on the data relevant to a limited number of class members or, in another type of scenario, determining contractual rates of performance by extrapolating from a defendant’s performance in a subset of cases. Cases built around such statistical approaches can run off the tracks, if one side or the other’s statistician applies suspect methodology. Of most fun to me, methodological errors, if the lawyers on the other side are astute enough to recognize them, can invalidate one side’s expert testimony and preclude its submission to a jury.

The extent to which statistics can be used or misused in this type of way to either illuminate or instead obfuscate what would otherwise be discernable to the observer has never been so well-illustrated as it has been in recent years by the explosion in the use of statistical analysis in major league baseball, a point both illustrated by and discussed in this article, from the new, overtly literate sports website Grantland (something I see as an attempt by ESPN to expand its tentacles to swallow up those few of us remaining sports fans who don’t think talking heads on a television screen yelling at each other about sports is all that interesting). Statistical analysis has devoured the front offices of baseball teams, replacing, in many instances, career observers and students of baseball, like a Pat Gillick, with laptop cradling, statistics-obsessed graduates of top-flight universities who, absent this opportunity to use math to grab central roles in baseball front offices, would have taken their math skills to Wall Street, or become well-paid actuaries.

However, what is getting lost in the shuffle here, and perhaps more than that in the smoke, mirrors and obfuscation that statistical analysis, when not properly placed in context, can generate, is that the statistical analysis being provided by the new, younger generation of baseball executives is not a “new” way of looking at baseball at all, but is simply the art of reducing observed reality to data that anyone with an understanding of the math can grasp and apply. What the data and their crunchers are doing is reducing the events that make up baseball games to numbers, so that people without vast experience observing the game and its myriad variations can understand and act on the game’s nuances. These analysts are not, however, doing anything more than illuminating facts that astute observers, after observing thousands of games and the variations inherent in them, have previously mastered based only on decades of watching the game and its possible outcomes in different circumstances, without ever reducing that knowledge to mere numbers and statistical formula. In essence, astute and experienced people who have seen enough baseball can tell you the same thing, and make the same judgment calls about which players are good at what, how to use players, what tactical decisions to make, and what players to sign, without ever needing the crutch of statistical analysis to do so. This, however, takes not just perception – something that not every baseball insider has – but also the decades of experience needed to see enough variation in the game, its players and its outcomes to be able to forecast outcomes. It is neither a coincidence nor an indicia of youthful expertise and comfort with math that the statistical revolution, such that it is, in baseball has resulted in ever younger baseball executives replacing much older, experienced warhorses. Rather, it is because turning the reality of baseball into numbers that can be analyzed independent of actual experience with the sport allows anyone astute enough to manipulate statistics to become an expert of a sort on baseball, without the need to first observe however many tens of thousands of hours of the sport that the old guard, without access to such data, had to see first hand before they could make the same evaluations and reach the same conclusions.

Want proof? You can find it right here in this article on Moneyball on Grantland, with its discussion of fielding being undervalued statistically, and the use of that fact by some teams to improve their ballclubs by focusing their spending on buying fielding. But there is nothing new about the idea that defense wins and that you can win by putting excellent fielders out there; all that is new is the reduction of that maxim to data points. Earl Weaver, whose expertise was developed by a lifetime spent watching baseball games, and who by doing so collected in his head – whether he realized it or not, although I think he did – all of the same data points that the new egghead baseball thinkers collate obsessively and then reduce to formulas on their laptops, always emphasized the importance of defense, yet he retired when most of the current generation of young baseball executives were in elementary school, assuming they were even born yet. Want more? Before the current statistical obsession turned to proving the role and importance of fielding, the baseball stat people were obsessed with demonstrating the lack of importance of bunting, hit and runs, and anything else that gave up outs and at-bats for free, in comparison to the importance of taking advantage of those opportunities at the plate; that whole idea is nothing more than the reduction to numbers of the Earl of Baltimore’s well-known hatred of bunting and the hit and run (something which some observers, incidentally, still think cost his team the 1979 World Series).

The point of this is not to belittle the new generation of baseball experts, who interpret baseball reality by what numbers tell them, but to illustrate a fact which too often gets missed: that statistics in baseball are not a new way of looking at the game, but are instead merely the reduction to numbers of a reality that others were already able to see. It has always troubled me that this simple fact has long been ignored in the glorification of the new baseball statistics, and in the idea that the older generation of baseball experts - people like Jack McKeon who somehow, despite not running SPSS packages for fun at night, still won a championship - suffered from a blind spot and did not know what the numbers showed.

And I suppose if I have to tie it back into the subject of this blog, and to my own professional preoccupations – which include the need to communicate clearly to juries and to understand when expert analysis is only interfering with doing that – I would point out that this is the perfect illustration of exactly how statistics, misused, can misrepresent reality in the courtroom. It is always important to grasp the extent to which statistics are clearly demonstrating a reality that cannot otherwise be seen, and when they are instead simply illustrating what could be seen without statistics and instead with careful observation. If you think about it, under the rules of evidence, statistical evidence doesn’t belong in a case in the latter instance, but can be truly illuminating in the former. The use of statistics in baseball, and how we think of them, is a perfect representation of this distinction.
 

On Disclosure and Conflicts of Interest

Posted By Stephen D. Rosenberg In 401(k) Plans , Conflicts of Interest , Fiduciaries , Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
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In my life as a trial lawyer, I have found myself in a recurrent situation, in which a judge or an arbitrator eventually looks at me in an argument over discovery and asks if I really want the information I am after, as it could run against me. I always answer the same way, to the effect that I am comfortable with facts, believe that more information is more likely to lead to the just result in the case, that I will trust the facts to show us which way to go, and that I am more than willing to let the facts come out in the open and drive the case. Now, the truth is that, before ever seeking the discovery that is at issue, I will have long since thought through the subject and become convinced that the evidence in question, once brought out, is far more likely to help my case than to harm it; the reality, from a tactical perspective is that, otherwise, I would not have pressed the point in the first place, with me going so far as to ask a court or arbitration panel to order production of the witness, or documents, or whatever else is in question. That said though, my response - to the effect that I favor the facts coming to light - is a true sentiment. Facts are stubborn things, in the classic formulation, and they decide cases; I am more than happy to have them see the light of day. Heck, I would certainly like to know of them while I can do something about them, even if they are bad for my case, than have them just show up for the first time out of some witness’ mouth on the stand in the middle of a trial.

I thought of this when I read this investment manager’s discussion of the Department of Labor’s expansion of the term fiduciary, which I discussed in my last post, and of the Department’s various initiatives related to fee disclosure, in particular his discussion of lobbying against those actions. Like facts in a lawsuit, the facts of revenue sharing, fees, and the like belong in the open, and can do nothing at the end of the day but improve outcomes for participants, plan sponsors, fiduciaries and the better advisors. What’s wrong with a little sunshine, a little transparency, and a lot of disclosure in this context? Frankly speaking, probably nothing. Participants will eventually end up with better outcomes, while plan sponsors and fiduciaries will have the information needed to best do their jobs, which will - if they use the information right - make them far less likely to get sued or, if sued, be held liable for fiduciary breaches. Meanwhile, we all know that advisors get paid fees, as of course they should; the only change is that everyone involved in the decision making will know who is getting paid what and for what exact services. Under that - possibly excessively rosy - view of the world, the end result should just be that the better advisors, who are providing better products and services at better prices, will get more of the business. What’s wrong with that, from a forest eye view?

Percentage Players Die Broke Too

Posted By Stephen D. Rosenberg In Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
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I have always wanted to write another blog about trial tactics and litigation strategy, and call it Percentage Players Die Broke Too, after the famous line by Paul Newman in the world’s finest film, The Hustler (that’s the first one, mind you, not the embarrassing sequel they did with Tom Cruise many decades later). For now, though, I am going to settle on adding a new subheading to the digressions section of this blog, titled “Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics.”

And the very first entry in that section is a link to this excellent post here, by North Carolina business litigator Mack Sperling, about upcoming changes to the federal rules that are intended to end one of my favorite pieces of federal court gamesmanship, the discovery of communications between experts and the lawyers who retain them, as well as of draft versions of expert reports. For awhile there, before everyone caught on, you could get ahold of such material, which could often be of great help in impeaching an opposing expert, simply because opposing lawyers mistakenly believed that they could engage in such communications and have drafts of reports revised under the cloak of privilege. They could not do so, in fact, and nothing was more fun that seeing the face of opposing counsel when they learned this.

In truth, over the last few years, it has become rarer and rarer to find opposing counsel who walked into this trap, and it was more a question of whether a particular expert prepared drafts that contradicted his or her final report without realizing the earlier draft might be discoverable.

Nonetheless, as the author points out, those days are gone forever. I should just let them go.