I have an appeal pending at the First Circuit right now concerning the interpretation of top hat plans and, thus, with discretion being the better part of valor and all that, I am not going to write too much about this new top hat decision out of the Eighth Circuit. However, for anyone out there studying the subject or litigating a top hat case, I did want to bring it to your attention. It reinforces the extent to which top hat plans are a unique combination of contract law and ERISA, and illustrates the extent to which doctrines of contractual interpretation control the application of top hat plans, to a more significant extent than is typically the case with ERISA plans.

The decision is Hankins v. Crane Auto Holdings, and you can find it here.

As I have mentioned in the past, it seems to be taking an inordinate amount of time for me to get through my countdown of the top ten posts on my blog in 2024. Nonetheless, I have finally reached the end of this countdown, even if I am a little late across the finish line on it, given that it is modeled on the old end of the year countdowns of hit songs radio stations used to do at the end of the year (and would typically finish on January 1 of a given year and not, as with this countdown, on March 2).

There is a certain irony to how long it has taken to finish this countdown – even though there are good reasons for that – because, of all things, the most popular post on this blog in 2024 was actually a post I wrote in June of 2023, in which I discussed why generative AI was more likely to increase, not decrease, the amount of legal work and corresponding legal bills that complex transactions and litigation produce. Why is that likely to be the case? Because history tells us that increased technological capabilities in the law just lead to more complicated deals and lawsuits, and with them bigger bills. And the news that some partners at Quinn Emanuel now bill $3,000 an hour and that consulting behemoth KPMG just launched its tech driven law practice, just seems to confirm my prediction.

And with that, here is the most read post of 2024 on this blog, “Why Do Law Firms (And Their Bills) Get Bigger the More Efficient They Become? And What Does That Foretell About the Use in Law Firms of Generative AI?“

Because I really like lawyering, I am pleased that I have had a very busy and productive February, full of client meetings, filings in courts in various jurisdictions, and interesting work. The drawback, though, is that it is now almost the end of the second month of 2025 and I still haven’t finished my countdown of my top ten blog posts from 2024. It’s starting to get a little embarrassing, frankly, to the extent that I think many law bloggers would have just dropped the whole countdown thing by now and just hoped that nobody would ever notice that they only made it to the fifth or the fourth or whatever number it was of their most popular posts from the prior year. Not me, though, because I am apparantly a glutton for punishment and determined, like Charlie Brown, to finally kick that football!

More seriously though, it is worth finishing this countdown because I believe that my second most popular post from 2024 is one of the more important posts I have ever written and is becoming more and more timely by the day. The post discusses the political and economic pressure to add private equity investment options to 401(k) plan investment menus, and why this is a terrible idea. Forget the question of whether it is paternalistic for naysayers like me to argue against it – the simple fact is that such a change will open up plan sponsors to so much future class action litigation that I don’t think anyone who argues against the proliferation of class actions against plan sponsors has any business promoting this idea. And that’s before we get to the question of whether the average plan participant is an appropriate and knowledgeable enough investor for this to make sense. Tell me, dear reader – do you have the time to research the details of the investments in your 401(k) plan, or do you just look at the returns? It’s not a criticism, it is just a fact – the investment of time to properly consider private equity investments, and the risks versus the returns, and the expertise needed to do so, makes this a bad idea for plan participants.

And so what if protecting plan participants by continuing to preclude such investments in 401(k) plans might strike some as paternalistic. That’s the whole point of the fiduciary requirements for such plans: that there is a prudent and loyal expert acting on behalf and in the interest of plan participants. If that isn’t pretty close to the definition of paternalistic, I don’t know what is. And yet, to the extent the 401(k) system does in fact work, this dynamic is a large part of the reason why.

So, with that, I will climb down from my soap box and introduce the second most popular post on my blog in 2024, “Adding Private Equity Investment Options to 401(k) Plans May Be a Good Idea – for Everyone Who Is Not a Plan Participant or a Plan Fiduciary.”

When I started this series of posts that count down the most popular posts on my blog in 2024, I called back, nostalgically, to the old days when radio disc jockeys would count down the most popular songs of the past year and play them, one after the other, over the course of a day or two. Back then, everything took place in real time and not internet time, and thus those countdowns always finished as scheduled and advertised.

Here, though, in the world of the blog, time is more malleable. While I meant to finish the countdown of the most popular posts from 2024 at least during the first month of 2025, time has shown that plan to have been little more than the idyll daydream of an eternal optimist. Not only did actual client work and court hearings alter the schedule, but so too did new legal developments over the past few weeks, which I also wanted to blog about, thereby taking up time that would otherwise have been spent on my countdown of the top blog posts from 2024.

Oh, well. I at least know, since we have now counted down to the third most popular post from 2024 on this blog, that one way or the other, this countdown will conclude in the second month of the new year. And with that, here is the third most popular post on this blog in 2024, “Loper, Chevron and the (Underrated) Value of Predictability,” which, unsurprisingly and perhaps predictably (get the joke?), addressed the impact that the demise of Chevron deference, and with it the decrease in predictability for regulated entities, will likely have on ERISA governed entities.

There is a great article today in the Wall Street Journal on the adoption of 401(k) plans by smaller companies, noting that this phenomenon is driven by both legislative and labor market developments, and crediting these changes with pushing employee participation in 401(k) plans to half of the labor force. All good news, but there is one point about this development that is worth mentioning and probably should have been mentioned in the article, given its focus on the adoption of such plans by small businesses.

In my practice, I have often seen poor administration of 401(k) plans run by smaller employers, not because of anything nefarious on anyone’s part or even anything at all on the part of the employer. Instead, it arises because of the nature of many of the administrators available to small plans and employers. Some are good, some aren’t, but generally speaking, they don’t bring the same level of resources to bear on administering plans that the large companies that administer the plans of large employers bring to the table. For smaller employers either thinking of offering or already offering a 401(k) plan, this is a point to remember.

If you are a small employer, while the marketplace will dictate which vendors are available to you, there are steps you can take to ameliorate the risks and concerns this raises. I will give you one of those right now: pay close attention to the contract you enter into with the administrator and, if at all possible, have an ERISA lawyer review it before you execute it. There are many key points and issues in offering a 401(k) plan that, if problems arise, will be affected by the terms of that contract, and it is a lot better if the employer offering such a plan knows those terms at the outset than only after a problem arises. It is even better if the employer and counsel have a chance to negotiate with the administrator over those terms before the agreement is signed. I cannot count how many times employers have brought such contracts to me only after a dispute has arisen – and at that point, the cure is a lot worse than prevention, by means of careful contracting, would have been.

Some things are just evergreen when it comes to ERISA, a point that is driven home whenever, as now, I publish my top ten most read blog posts of the prior year. The Supreme Court just returned, for about the umpteenth time, to the subject of excessive fee class action litigation and the question of how to balance the value of such cases to participants against the costs to plan sponsors. Coincidentally, the fourth most popular post in 2024 on this blog was about the exact same issue, which I wrote about in the post “An Easy Read on the Past and Future of 401(k) Plan Litigation.” The more things change, I guess . . .

Over on LinkedIn, Megan Wade, who writes “A Brief Review – A Connecticut Appellate Law Blog” and recently launched an appellate litigation practice in Connecticut, asked the question of at what stage of a case trial counsel should associate in appellate counsel. I thought I would answer this from the perspective of someone with a double digit number of both appeals and trials under his belt – and the answer is it depends. Now before many of you mutter “obviously” and stop reading, I mean more specifically that it depends on the case strategy and the interrelationship in that strategy of the trial and appellate phases.

If it’s a fact based case and the only likely appellate concerns that will arise at trial involve preserving for appeal evidentiary or other typical issues that arise “in the run of play” at trial, trial counsel should be capable of protecting those issues for appeal and appellate counsel can just be retained later, if and when the losing party appeals. But if there is a complex legal issue that will be central to the suit’s outcome that is unlikely to be fully resolved at trial and, barring settlement, almost certainly will be subject to appellate review, then that is a different situation. In that case, bringing in appellate counsel even before trial can be important, both for planning how to frame the issue at trial so that it can be best argued on appeal and to deal with any disruptions to that strategy that arise during the trial (after all, no trial ever really goes exactly as planned and the mark of a good trial team is their ability to adjust on the fly).

I will use a concrete example from my own practice to illustrate my point. I was defending a pierce the corporate veil case against a senior officer of a company, with the plaintiff relying on an open question of law in the jurisdiction we were in to make the claim. We believed that the proper resolution of that open question of law provided my client with a powerful defense and, if included in the jury instructions, should result in a jury verdict in our favor.

We also knew that we had no other defense, however, and that, therefore, if the trial court refused to include a jury instruction to that effect, we were certain to lose at trial. Given the circumstances, we deliberately tried the case in a manner directed at prevailing under what we believed should be the new rule of law, figuring that either the trial judge would agree to include it in the jury instructions and the jury would rule in our favor, or the trial judge would refuse to grant the instruction, we would lose at trial and then have to fight that issue on appeal (we also felt confident even before trial that, if the trial court refused to give that jury instruction, the appeals court would hold that the instruction should have been given and thus any verdict in favor of the plaintiff would be reversed).

End result in the case? The judge refused to include the requested jury instruction, the jury came back against my client after a half day of deliberations, and the appeals court agreed with us that it was reversible error not to give that instruction. The appeals court further held that a reasonable jury, on the evidence at trial, would have found for my client if the instruction had been granted and therefore entered judgment for my client.

That particular case required appellate planning and expertise long before trial, rather than just after trial. In a case like that, it makes sense to have appellate expertise on board earlier rather than later, whether that is because it is part of the skillset of the trial team or by bringing in an appellate specialist.

And that is why when to bring in appellate expertise depends – it is all about what is necessary to get the win and when that expertise will be needed under the specific circumstances and strategy at issue.

This is a really good day to be returning to my countdown of the top ten most read blog posts of 2024, because just yesterday, the Supreme Court returned to a central issue in ERISA class action and excessive fee litigation: namely, what are the pleading standards and how can they be used to control the scope of such litigation, including avoiding the prosecution of essentially meritless such claims, which benefit only the defense lawyers and, if the defendant or insurer pays a settlement to avoid defense costs, then the plaintiffs’ lawyers as well.

Why does that make today a particularly propitious day for me to return to this countdown? Because the fifth most read post on this blog in 2024 was about this exact topic, with the discussion driven by a summary judgment ruling allowing such a claim to proceed in circumstances where, in point of fact, the case appears to have clearly lacked objective merit. And with that, here is the fifth most popular post from 2024, “Summary Judgment Proceedings in Breach of Fiduciary Duty Litigation: The Lessons of Sellers v. Boston College.”

I don’t exactly understand why this particular post made it all the way up the rankings to be the sixth most read post on my blog in 2024, as substantively it isn’t anywhere near as interesting to me as most of the other posts in the top ten, which discuss more novel or esoteric aspects of ERISA or insurance litigation. However, my best guess is that it was popular because it focused on one of the most evergreen, yet often misunderstood, topics in ERISA litigation – the role and impact of arbitrary and capricious review. I have a lot I could and would like to say on that topic, both today and every day, but that would require me to sit down and write for a while, something I have already done once today so as to write this LinkedIn post on the insurance markets in the face of pandemics and wildfires. So instead, without further delay, here is the sixth most popular post on my blog during 2024, “What Does Arbitrary and Capricious Review Really Mean, Anyway?”

Story after story keep telling the same story – that class action litigation against ERISA plan sponsors and fiduciaries is a growth industry. Encore Fiduciary’s Daniel Aronowitz and Karolina Jozwiak have a great, data rich piece out in Planadvisor documenting this fact, and the legal media world is all atwitter about the latest new way to sue a plan fiduciary, which is by accusing him or her of the dastardly deed of considering ESG factors in selecting investments.

I mention this because it is a perfect lead in to my seventh most popular blog post of the year just gone by, which was a plea for plan sponsors and their insurers to invest in reining in the run away costs of this type of litigation. I had fun with writing it, but it was driven, at the end of the day, really by a certain level of frustration with the status quo in the legal and insurance world with these types of cases. And with that lead up, here is the seventh most popular post on my blog in 2024, “A Modest Proposal for Solving (At Least Part of) the ERISA Class Action Litigation Crisis.”