Some weeks the Five Favorites write themselves and this week was one of them. I think it’s because so many of the articles hit right dead center on issues I have litigated or counseled on over the years, including disputes between excess and primary insurers, whether forfeiture under a 401(k) plan is appropriate, withdrawal liability for union pension obligations, fiduciary best practices, and attorney fee awards in ERISA class actions. So here are my five favorites for the last Friday in February.

  1. I don’t think many insureds really or fully grasp the endless friction points between their primary and excess insurers, which can negatively impact the resolution of claims, although that’s usually not the case and the times it occurs are outliers. Still, the clashes in interest between primary and excess carriers can disrupt the handling of claims and lead to litigation. Here’s one good example from my own practice, which I discussed in the context of the attorney client privilege and the current hot topic of the moment, which is when does the use of AI destroy the attorney client privilege. In a similar vein, the Nevada Supreme Court recently decided that an excess carrier can bring a subrogation claim against a primary carrier for failing to settle a claim when the primary carrier should have done so. I have litigated, including trying to verdict, this exact cause of action multiple times (although obviously not in Nevada, given that they just adopted it). While the rule is a good one for many reasons, it doesn’t reduce the possible points of contention between a primary and an excess carrier over a claim and can also have the unintended effect of increasing them, based on my experience litigating that type of a case. All of this is a preview to one of my favorite though short articles of the week, this missive from Wiley on a new Seventh Circuit decision addressing the question of whether an excess carrier should attend a mediation of a claim. It’s a great article and case, partly because, believe it or not, this exact argument happens a lot, with a primary carrier or an insured or a plaintiff demanding the excess carrier attend, and the excess carrier not doing so.
  2. I am an evidence-based skeptic. As a result, I am not always convinced by the rush to judgment on whether new theories of ERISA liability pressed in class action cases are legitimate, credible, viable or something else entirely. For instance, although there are reasons to doubt the ultimate viability of class actions challenging forfeitures under 401(k) plans, I am not close to convinced that the theory has been sufficiently vetted yet to make that call. I think the question of whether this is an appropriate liability theory to press against plan fiduciaries probably requires some factual development in discovery in a few cases before a consensus on the legitimacy of these types of claims can be legitimately formed. Thus, I had no problem whatsoever with Massachusetts federal District Court Judge Young allowing a forfeiture class action to move into discovery, rather than dismissing it outright, which was the point I made in this Massachusetts Lawyers Weekly article on this decision in which I was quoted.
  3. Withdrawal liability, which is the statutorily created funding obligation for union pension plans faced by employers who stop using union labor, can be a lot of fun! At least if you are the lawyer litigating a dispute, but not, given the scale of the potential liability at issue, if you are the former employer of union labor seeking to avoid a large bill for the future pension costs of a union pension plan. I have litigated this issue multiple times and the key for employers seeking to get out from under the exposure is to find a leverage point for pushing back on the amount demanded. I once did it by focusing on a break in the history of the union contracts executed over decades by the employer at issue, but typically it has been by arguing the legal meaning of certain contractual or statutory terms or of certain events. This is a great story of using Loper Bright and the question of whether regulatory action misinterpreted the statutory language as the lever.
  4. More than a few years back, when the excessive fee litigation boom was just getting underway, I used to include a slide in my PowerPoint decks at presentations on fiduciary liability that stole a line from football, namely that the best offense was a good defense. The point I then made when I hit that slide was that the best way to avoid getting sued and the best defense if sued was to have followed a sound fiduciary practice in reviewing and selecting investment options, along with contemporaneously documenting that this had occurred. Over the past few years, class action defense of fiduciaries in ERISA has moved away from this type of a granular fact-based defense to a focus on legal and doctrinal arguments, such as standing and injury. Now, with attention turning to how the plaintiffs’ theories of the 401(k) class action era are being remodeled for use against health plans and other welfare benefits, attention seems to be returning to the old-fashioned fiduciary virtues of “documented process[,] active oversight, prudent benchmarking, and disciplined decision-making.” No matter what new theories come down the road against what types of plans, running a plan using that model is the best preparation for the unknown.
  5. I am as guilty as the next ERISA observer of criticizing class action settlements and recoveries where the lawyers make bank but the average class member recovers just a few bucks. However, I have defended multiple class actions, been personal counsel to a senior executive implicated in a major class action, represented the class in a successful ERISA class action and represented multiple employees through joinder in a 401(k) action that perhaps could alternatively have been structured as a small class. What I can tell you from that experience is that the lawyers on the defense side of an ERISA class action are always good and sometimes very good – and that any class and their lawyers who win big, earned that win the hard way. So I don’t really have a problem with or even a criticism of an award of “$96.28 million in attorneys’ fees, which was 29% of the $332 million common fund” recovered in settlement, and which in turn “represented nearly 98% of the total [losses] claimed by the class.” Give this summary of the case and this article about the fee award a quick read, and I don’t think you will either.

We are having a blizzard in Boston today. It started around 3 in the morning and is expected to continue for much of the day. I thought I would take a break from snowblowing to finally finish my top ten countdown of my blog and LinkedIn posts of 2025. I had originally targeted the end of January as the latest I wanted to finish the countdown, but work commitments and a host of new developments that I wanted to post about interfered with that not too ambitious goal. So I am going to finish the countdown now, while at least it isn’t yet spring.

Some of you will remember that I made two changes to the rules of the top ten countdown this time around. First, I authorized the judges (me) to use subjective factors in the countdown and not just assign rankings based strictly on the numbers of readers of a given post. This rule is why my post on being named a 2025 Super Lawyer, titled “Up In the Sky, It’s Super Lawyer!” with a picture of a Lego Superman, wasn’t included in my Top Ten countdown, even though the number of readers of the post should have put it squarely in the middle of the countdown. The judges (again I note, me) believed the numbers were inflated by the great picture of a Lego Superman and thus they left it off the countdown.

Second, the rules were altered to include both posts on this blog and my writing on LinkedIn, given that I wrote a number of substantive posts and articles on LinkedIn that, in times past, I would have instead posted on my blog. This did result in a couple of articles and posts that I wrote on LinkedIn making it into the Top Ten this year, such as this one comparing private equity investments in 401(k) plans to milkshakes and this one about what a McDonald’s ad can teach us about using AI in claims handling. (It appears, in hindsight, that I had food on my mind a lot last year).

The two new rule changes for this year’s countdown collided when it came to anointing the number one post in the Top Ten countdown. If I am honest, the most important post I wrote all year on any platform, in my opinion (and remember, I am the only judge for purposes of the countdown), is the one that came in second, a cheat sheet and guide for plan sponsors facing pressure from all directions to open up their 401(k) plans to alternative investments, despite the risk that doing so poses for fiduciaries and sponsors of plans.

And I thought briefly about leapfrogging that post into the number one spot in the countdown. But a different post literally went viral, racking up numbers of readers, viewers and comments that make it impossible to put it in any spot in the countdown other than number one. It’s a LinkedIn post on three things I learned from older lawyers when I was starting out that still guide my handling of settlement discussions, and you can find it here. It’s my Number One post on this blog or LinkedIn of 2025.

Note that the three ideas they offered aren’t literal guidelines that I follow. Instead, they are comments that have a lot to teach about the good and bad of settlement negotiations if you look at them from enough angles.

If you enjoyed the countdown, subscribe to the blog to make sure you don’t miss my next Top Ten Countdown, coming sometime next January!

This is a really educational week on Five Favorites for Friday. There is no hidden message or implicit critique buried in that point. It’s just that a number of comprehensive stories providing a detailed overview of key areas of development in ERISA litigation were published this past week and, solely because of their quality, make up a disproportionate number of the articles that made it into the Five Favorites for Friday post this week.

As you know, the Five Favorites for Friday post is a recurring weekly feature on my blog. So if you prefer the ones that are less informative but more filled with my snark and opinion, just wait a week – I am sure I will be back to that on this weekly post before you know it!

  1. In the ERISA world, forfeitures are all the rage. They are showing up in my own practice and every time I open up the (digital) newspaper there is a story of a new forfeiture class action. What is a forfeiture in this context, what is the fate of the class actions being filed over them and is this a promising area of recovery for the class action plaintiffs’ bar (and thus a legitimate concern and risk for plan sponsors and their insurers)? No one really knows, because it is too early to tell, but to date, the early returns have favored the defendants. Everything you need to know about the short history of this line of litigation and the current treatment of this theory by the courts is discussed in this excellent publication on the status of forfeiture litigation.
  2. An interesting aspect of forfeiture litigation under ERISA has been that defendants have done pretty well to date at the motion to dismiss stage and, partly as a result, the defense bar is downplaying the risk posed by these types of claims. Cautionary note for you – the same was basically true at the outset of the excessive fee class action filings 15 or so years ago. So don’t let the emerging consensus that forfeiture class actions lack legs make you think the issues raised by this type of litigation are dead and gone already. All you have to read to know they are not is this article on the $42 million settlement of a forfeiture class action that was just penned. (Note that the story may be behind a paywall but if you don’t have access, the story reports that “Providence Health & Services signed a class settlement valued at more than $42 million, resolving claims it mismanaged its employees’ retirement plan by failing to use money forfeited by departing workers to reduce administrative expenses.”)
  3. The hottest topic in the world of 401(k) plans is whether and if so how to add private equity and other so-called alternative assets to 401(k) plans. The lawyer who invented excessive fee class action litigation, Jerry Schlichter, has a lot to say on the subject in this article. Come for the great personal details about his background, stay for the relatively evenhanded presentation of the substantive issues related to the push to open plans up to those investments.
  4. I stood up in a Philadelphia courtroom in 2014 to argue post-trial motions after a weeklong jury trial. What has long stuck with me is that every other case heard that day had its original origin, just as mine did, in the fallout from the economic collapse and near complete shutdown of the commercial economy in 2008. That day in court, though, was six years after the events at issue. I have always thought of it as a good reminder of how long a tail major economic or mass tort events have, as claims arising from them work their way through the system. I was reminded of that by this article, explaining that pandemic era disputes involving business interruption coverage are still working their way through the court system (the article is about the UK, but I have little doubt it’s the same on this side of the Atlantic as well).
  5. Many years ago, when target date funds were being rolled out into 401(k) plans, there was vigorous debate at ERISA litigation conferences as to whether including them as investment options was a fiduciary breach or could at least give rise to such claims. The consensus at that time was that, at a minimum, plan sponsors and fiduciaries needed to look closely at the underlying investments and issues related to the glide paths. Over time, these concerns died away and their inclusion in plans became an accepted part of the lay of the land. However, this article argues that this complacency is now a real threat to plan participants and the fiduciaries charged with protecting them.

I was in the First Circuit courtroom not too long ago waiting to argue when I became interested in another case on the argument list, which concerned the overlap of legal malpractice and patent law, both areas in which I have litigated cases in the past. But what really grabbed my attention about the case was the centrality to the argument of the statute of limitations, and in particular whether it was appropriately decided by the court as a matter of law on summary judgment or whether instead it was an issue that belonged to the jury to decide.

There is a tendency in ERISA litigation for defense counsel and often courts to treat the statute of limitations as a legal argument for resolution by the court, sometimes as early as at the motion to dismiss stage. In ERISA litigation, this can be a particularly difficult issue, because of the somewhat amorphous nature of the statute of limitations standard. While that is not so much the case with regard to benefit claims, because the court simply applies the most analogous state law statute of limitations to the claim, the statute of limitations set forth in ERISA for breach of fiduciary duty claims is broadly written, and one can argue that all sorts of fact patterns do or do not satisfy it. Depending on where the court is that you are litigating in, the question can become even more amorphous when one presses – or defends against – equitable relief claims under ERISA.

Nor are these just academic problems or exercises. I once litigated an ESOP class action where the entire multimillion dollar liability depended on whether or not the timing of the class representatives’ knowledge of the transaction at issue was sufficient to trigger the bar of the statute of limitations under ERISA for such claims, and I could give you a laundry list of other examples from my own practice where issues related to the statute of limitations played a central role.

One of the central issues in those disputes tends to be just how much knowledge of the events at issue or the breaches at issue is necessary to trigger the running of the statutory bar. After all, the disclosure requirements of ERISA guarantee that some information of some kind relevant to a claim being made under ERISA was, broadly speaking, “known” to some extent to the plaintiff at some point in time. In fact, the leading First Circuit decisions on the statute of limitations under ERISA effectively revolve around the question of how much knowledge is enough – and not on the question of whether there was any knowledge at all. In real time in litigating ERISA cases in the First Circuit that raise statute of limitations issues, that tends to be the issue that dominates hearings and briefs.

It’s always been my view that these should be seen as more fact questions for trial than legal questions for motion practice. Although in an ERISA case there is generally no jury, and thus the decisionmaker is the same either way on questions related to the running of the statute of limitations, treating it as an issue for the factfinder and not as a legal issue for motion practice ensures that all of the relevant evidence on the question is heard – which is something I think the statute of limitations determination generally requires, but which common practice in ERISA litigation often does not allow, by instead having the issue decided on motions to dismiss or on summary judgment.

In any event, this is pretty much the conclusion that was just reached by the First Circuit in the patent and legal malpractice case that I saw argued the last time I was arguing at the First Circuit. You can find a good story on it here, if you don’t want to read the entire opinion.

Now it’s on ERISA litigators to see if they can use it to move the statute of limitations determination in their cases to trial, and out of motions to dismiss or for summary judgment, in cases that warrant it.

This was a fun week if, like me, you enjoy reading about ERISA and insurance issues. There was a lot to pay attention to, but for purposes of this weekly post, I narrowed it down to articles on nuclear verdicts, cyber insurance, regulatory initiatives targeted at PBMs and drug pricing, the continued boom in ERISA class actions, and how to avoid ending up a defendant in an ERISA class action.

  1. I can’t say it enough. What started out as a tort law phenomenon is now an employment law phenomenon. Nuclear verdicts are now being reported enough with regard to employment law claims that it now mirrors the early days of the rise of nuclear verdicts in personal injury and product liability litigation. Here’s another example, with a $52 million verdict. And here’s my post from two years ago, pointing out that employment litigation is the next great frontier with regard to nuclear verdicts. Employers and EPLI insurers should prepare for this problem now, and not just try to close the barn door after the horse is already out and on the run. There are many lessons from the development of nuclear verdicts in the personal injury world that employers, EPLI insurers and their lawyers can draw on at this point for these purposes. I have written a lot on those lessons, including here, here and here. The key takeaway for the employment law bar and EPLI insurers from the experience with this phenomenon in the tort world is simple. You have to study cases, anticipate which cases pose real risks of nuclear verdicts, and decide what you are going to do about it prospectively – settle or choose a tactic for trial that will reduce the risk – but what you cannot do is wait until after the verdict comes in to address the potential exposure.
  2. Sunshine is the greatest disinfectant when it comes to buried costs in ERISA plans – and the hammer to driving down those costs tends to be a class action bar with access to that information. That, anyway, is one lesson you can draw from the history of regulatory reform and disclosure with regard to the costs built into 401(k) plans. We are about to watch the same story play out in a sequel, this time concerning drug costs and the role of pharmacy benefit managers. This is a great Lockton report on what’s coming and what’s changing.
  3. Does a week go by that I don’t comment on cyber insurance issues in my weekly Five Favorites for Friday post? I am sure it happens, but it doesn’t actually feel like it happens. That’s because, as this article points out, “cyber insurance continues its growth trajectory as the fastest-growing global insurance product.” At the same time, as the article points out about the UK market, a massive percentage of businesses are either uninsured or underinsured for the risk. As I discussed last week, unless and until those two factors come into alignment, and most exposures are insured as a matter of course, business leaders will continue to fret disproportionately about cyber liabilities and the risk will remain central to business planning.
  4. They didn’t bury the lede. This is the first sentence of Encore Fiduciary’s blog post reviewing developments in ERISA class action litigation in 2025: “2025 saw a near-record high 155 fiduciary class lawsuits filed by plaintiff firms alleging violations of ERISA and breaches of fiduciary duty.” Pretty much everything you want to know, from a 30,000 foot level, of what that means is in the blog post. My favorite takeaway is that 401(k) plans remain the most popular target, but the run is on to sue fiduciaries and plan sponsors over health benefits.
  5. But with regard to the ever-expanding numbers of ERISA class actions, plan sponsors and fiduciaries too often lose sight of the fact that they can defend these cases simply by having put in the work in administering the plan, doing a good enough job, and documenting what they did. Perfection isn’t close to the test. As this excellent review of controlling law on fiduciary liability in Bloomberg Law, penned by ERISA lawyer Samuel Krause, puts it, “fiduciary risk” is dependent on ” the quality of the process and the paper trail that supports it.” So if you run a benefit plan and don’t want to end up another statistic in Encore Fiduciary’s mathematical breakdown of ERISA class actions, put a good process in place and document that you followed it.

In some ways, the second most popular post on my blog in 2025 was my favorite – and objectively likely my “best” – post of the year, in any venue. It hit early and accurately, and provided actionable advice to an at-risk population, namely employers who sponsor 401(k) plans and the fiduciaries who operate them.

The subject? The sudden gold rush on the part of both the presidential administration and Wall Street to open up 401(k) plan investment menus to private equity investments and other so-called alternative investments.

Pretty quickly after that issue breached the surface, I wrote a post that I called a cheat sheet for plan sponsors and fiduciaries on how to protect themselves in the face of the increasing pressure to allow such investments into their plans. The cheat sheet only required six steps by employers and fiduciaries to protect themselves, not ten or twenty or some long list of technical actions. This is because prudent, defensible conduct – and not perfection – is what plan sponsors and fiduciaries need to engage in to protect themselves from liability, and those six steps were (and remain) enough to demonstrate that type of conduct in this context.

The post was “Best Practices for ERISA Plan Sponsors and Fiduciaries in a Changing World: A Cheat Sheet for Deciding Whether to Add Private Equity or Other Alternative Investments to Plans,” and you can find it here.

In some ways, I wish it had landed at number one in the countdown of my most popular posts of 2025 and, knowing my readership, I am a little surprised it didn’t.

But the single most popular post of 2025 legitimately was a viral post, and I can’t argue with its numbers. Stay tuned to the countdown for a few days, at which point we will unveil my single most popular post of the year gone by.

Wow – what an embarrassment of riches this week. Partly because of developments in AI and the law, partly because of regulatory and litigation developments in ERISA and partly because the insurance world never stops spinning, there is a metaphorical feast of articles and the like that I could discuss in this week’s edition of my Five Favorites for Friday series. (For any of you who may be new to the series, you can find its origin story here.)

My five favorites for this week:

  1. In honor of the Super Bowl this weekend, I had no choice but to open with a story about the NFL’s disability plan for injured – usually chronically – retired football players. I have been writing about the NFL’s disability benefit plan, CTE and disabled retired players since the case of retired Steeler Mike Webster turned the tables on the NFL’s ability to keep the issue far on the backburner and effectively out of sight. I wrote multiple posts on the case and its aftermath, starting with this one in 2006. In response, over time and under pressure, the NFL built out a new disability plan, one that appears to have been pretty successful both in increasing the availability of benefits and in prevailing against court challenges. The lastest win for the NFL in this regard is this rejection of a class action attack on the program. This article does a nice job with explaining that decision.
  2. I know what they’re afraid of. This article discusses a large sample survey by Allianz of the concerns that are keeping corporate officers up at night, with far and away the leading concerns being AI and cyber risks. What is driving that is almost certainly the novelty and with it the lack of predictability of the exposure and the unsettled nature of insurance coverage for that exposure. I recently argued a data breach case at the First Circuit and have been working with cyber policies for pushing fifteen years now. Unlike most other corporate and D&O exposures that companies face, this remains, to a large extent, uncharted waters. These worries will recede as a touchpoint for corporate pain once, as with employment, securities, antitrust or other risks, the scope of the liability and the management of it (including the extent of insurance) becomes both more consistent and more normalized.
  3. Speaking of things that corporate officers should be afraid of, employers should be very concerned by the opening of a new ERISA class action litigation front involving what are known in the field as voluntary benefits. At a minimum, given the potential scale of this liability and the talents of the firm bringing the suits, employers and their lawyers should understand what it’s all about. This article by my friend Joe Faucher does an excellent job of explaining it.
  4. AI hype has held for over a year now that lawyers will go the way of the dodo, replaced by AI. I have written frequently on the idea that this assertion ignores what lawyering really is and confuses it with the workflows that occur as part of lawyering. It is, however, generally my view that AI tools will become a commonplace for lawyering and that the successful lawyers of the future will be the ones who can turn them into force multipliers. One of the problems with the hype machine with AI for lawyers, though, is that it obfuscates what adoption will really look like and how it will affect law firms and lawyering (an issue I got out ahead of nearly three years ago in this post). Economists who study technological and other change think they know, however – it will be a J cure, with a drop off in productivity while the tools are incorporated followed by a boom in productivity from their adoption, as discussed here. Anyone want to hazard a guess, in light of this, as to why we read so many stories of large law firms investing early in creating, acquiring and adopting AI tools? The return may be poor for now, but the smart money is on those firms that invest early in the bottom part of the J curve so that they can reap the rewards of the upside afterwards.
  5. It can be a heck of a lot easier to set up a retirement plan for employees (especially defined contribution plans) than it can be to terminate one. I have worked with clients on both ends of that lifecycle, and the end game is much more complicated, both strategically and technically. This is a great post on the some of the key issues in putting a pension plan out of a plan sponsor’s misery. Fair warning – it’s real ERISA geek stuff, but I liked it.

I continue to push through the last few in my countdown of my Top Ten posts on this blog in 2025, having now reached the number three post. Number three is actually one of my favorites. It raises the question of when, exactly, AI claims processing is proper and when, instead, it will prove to be nothing more than a lawsuit magnet.

As I discussed in the post, the dividing line seems to be between claims that simply require the mechanical application of fixed rules to precise facts, and claims that require judgment calls as to the relationship between a particular fact pattern and the plan or policy terms at issue.

Anyway, I can’t say I am surprised that an AI centered post ended up in the top three. If anything, I am surprised it didn’t land higher, but when I unveil the top two posts, you will see why it didn’t.

So, in any event, here is the third most popular post on this blog in 2025, “Claims Processing by AI? Here Come the Lawsuits.”

This is the latest in a series of posts, always published on Friday, discussing five articles, topics, videos, podcasts, blog posts and the like that crossed my desk during the week just ended. Some weeks, the post has a consistent theme, such as last week when it turned out to be essentially “all ERISA, all the time.” Not so this week, as the topics wander (with great purpose, remembering that all who wander are not lost), from AI to private equity to regulations to ERISA class action litigation to what we can learn from The Princess Bride about the proposal to use 401(k) assets to buy houses.

So here goes nothing, as the saying goes:

  1. This is an interesting little post on an insurance product offering increased limits and coverage on AI and agent risks. I like it solely because it illustrates a particular point. There is a lot of discussion out there about the scope of coverage for these types of risks, about increased efforts to exclude them under certain policies, and related or similar issues. As this post shows though, there is also a counter narrative of insurers increasing coverage limits and scope for this type of risk. That’s the great thing about insurance – there is generally always a real market with real competition at play over the availability, nature and scope of various types of coverage. While this is particularly true during the early days of a particular novel risk or new type of coverage, it typically continues over time, with market and competitive forces driving further development of any particular form of coverage, its terms, and the like. As I have mentioned before, EPLI policies and fiduciary liability policies, for example, have evolved substantially in the decades I have been involved with them as either a coverage lawyer or as a defense lawyer for clients covered under them. Adam Smith would think well of the modern market for insurance. The market’s response to AI risks is more proof of that.
  2. I don’t believe people really think that a new regulation or substantive guidance from the Department of Labor will fully shield plan sponsors and fiduciaries against litigation and liability risks stemming from adding private equity investments into 401(k) plans. Provide them with more litigation defenses? Sure. Dissuade the class action bar from coming after them where the case is a close call? Definitely. But preclude litigation or eliminate all potential liability where a plan has a big loss from including those investments or in cases where the plan fiduciary didn’t have (or rely on someone who had) a sophisticated understanding of that investment? Absolutely not. And if they tried to write a regulation broad enough to do that? It would be sufficiently contradictory to the actual language of the statute that it would never survive a Loper challenge, if the new Loper standards are applied objectively. Anyway, you can read what is currently known – as opposed to my predictions – about the upcoming regulations in this article, which provides a nice overview of the subject.
  3. One of the most famous lines in movie history has to be the line from The Princess Bride, that “you keep using that word [but] I do not think it means what you think it means.” I keep thinking about that line these days with regard to all sorts of proposals to reorient 401(k) plans away from their fundamental purpose, which was to encourage and protect long term retirement savings. Some of their best features – tax deferral and employer matching – are tied directly to this purpose or directly promote it. Lately, it seems like a lot of people are forgetting this point and viewing 401(k)s as simply some other type of savings account or treasure chest to be accessed for all sorts of purposes, such as most recently buying houses. At what point does the 401(k) cease having any discernable purpose that warrants its tax favored treatment if it just becomes another savings or investment instrument for all sorts of uses? At the end of the day, I think many of these proposals come from people who keep saying 401(k) but, as in The Princess Bride, don’t necessarily really understand what that word means.
  4. This is a great article summing up the state of ERISA litigation at the end of 2025 and making some predictions as to key issues that will be on the radar screen in 2026. There are two particular things I like about it from a meta or 30,000 foot perspective, even though neither is expressly mentioned in the article. First, it reflects the extent to which two competing themes in ERISA litigation, particularly class action litigation, can be true at the same time – in this instance that ERISA class action litigation, potential plan sponsor exposure and new theories of liability are expanding but, at the same time, courts are in other ways narrowing those risks and exposures. Remember this when you read stories and posts bemoaning only the risks to plan fiduciaries from novel liability theories and the like, without any reference to the countervailing story line. Second, it reflects the extent to which not only class action plaintiffs lawyers – with their novel theories and copycat suits – are pushing the envelope, but also the extent to which judges are constantly revisiting issues in this area of the law, thereby changing the landscape (for instance, see the discussion in the article about jury trials in ERISA cases). This constant give and take is what makes it fun to practice in this area of the law.
  5. Insurers and claims administrators don’t have to be right when they decide a claim for benefits under ERISA to prevail in litigation (in most cases, anyway, as this is only true if the benefit plan at issue contains certain magic language, but almost all such plans contain that language nowadays). Their decisions as to whether to grant, or instead deny, benefits just have to be reasonable. As I like to explain it, they are held to a horseshoes standard – they don’t have to hit the post, they just have to get reasonably close and, if so, their decision on a benefit claim stands. At the same time, as a necessary check on this power, they are expected to properly investigate the claim for benefits and communicate accurately with the participant seeking benefits during the processing of a claim for benefits. The expectation that insurers and claims administrators will conduct themselves that way with regard to a claim for benefits has come to be thought of as a procedural obligation on their part in deciding benefit claims. Courts have slowly over time developed a body of case law holding that a denial of benefits that rests on procedural flaws in the investigation and communication by the insurer or claim administrator – regardless of the substantive accuracy or lack thereof of the benefit denial – should be overturned. This issue, which has been slowly developing over the years, at different rates in different circuits, is well discussed in this article addressing a new Sixth Circuit decision taking this approach.

It’s probably become obvious over the years to anyone that reads this blog regularly, that I love contracts. It was my favorite class during first year of law school (everyone else preferred torts, with its car crashes and the like) and one of the reasons I have spent decades litigating insurance coverage disputes is they are really just glorified contract disputes with their own specialized associated body of rules. Even my business litigation practice is often very contract based at heart, such as disputes over deals and transactions that have gone south, which at the end of the day rest on contracts at their foundation. My ERISA practice has much the same flavor – although it is heavily dependent upon understanding and being able to weaponize a whole host of related matters, such as the rules governing prohibited transactions or the law of fiduciary liability, at heart all cases start from one of the most complicated contracts known to American lawyers, the ERISA governed plan.

I have always enjoyed – partly as a result – the art of reducing a really complicated settlement to a written agreement. Not the kind where it just says the plaintiff gets paid and releases all defendants and their insurers from anything and everything, but the kind with lots of contingencies, moving parts, parties and carve outs. ERISA is a natural area for this, but so too are some of the multi-party, large dollar coverage exposures that I have resolved.

One of the issues with that type of drafting, however, is that there is always a question of what to leave in and what to leave out (to quote – or possibly misquote – an old Bob Seger song). I have litigated a number of cases over the scope of settlement agreements (always in the context of me litigating agreements written by others), including in both ERISA and insurance disputes, and the question of interpretation of unclear language becomes a little bit like asking about the number of angels on a head of a pin, meaning it’s really open to debate. Sometimes, the court’s approach to addressing that problem is to simply treat the document literally and declare that, if it wasn’t expressly stated in the agreement, then that is the end of the story, no matter what the parties intended. It can often be hard to get courts to go past that initial approach, which can be very frustrating for parties who know that neither they, nor the other side, actually meant the interpretation adopted by the court using that rubric.

So I thought this new decision out of the Massachusetts trial court was terrific, holding that a settlement agreement could be reformed to correct a drafting mistake where the extrinsic evidence was sufficient to demonstrate that a term was only omitted for that reason. The devil, of course, in these scenarios is always in the details, as to whether there is enough evidence to persuade a court that this type of an error occurred, but these types of holdings are few and far enough between to warrant filing this one away for future use in a case.

You can find a Massachusetts Lawyers Weekly article on the decision here, although I suspect it’s behind a paywall.