I did not intend to return, yet again, to the summary judgment opinion in Sellers as gist for a blog post. Something about it that I haven’t touched on yet, however, keeps overlapping with other developments which caught my attention because of their relationship to long standing interests of mine related to trial work, discovery, the rules of civil procedure and the costs of litigation – in particular, how do we continue to decide matters by trial when the costs of discovery have made it too burdensome to even get to that stage. Many commentators, and almost every lawyer I speak to about the subject, have noted the epilogue in the Sellers summary judgment opinion, concerning the relationship between the vanishing trial, the costs of litigation and whether summary judgment filings are appropriate in many cases. I personally read the epilogue as part of a long running, and thoughtful, critique I have heard and read over the years by the particular judge as to the costs of discovery and the decline of trials as the preferred form of adjudication.

There is clearly a linkage between the scope and expense of discovery, on the one hand, and the statistically established dying of the jury trial. Some of this scope and cost are structural and arise from the expense of some of its tools, including electronic discovery. Another part of it, though, clearly stems from the fear of many lawyers that they will miss something that might have been useful at trial if they are judicious in their use of discovery. Concerned about being criticized after the fact if this happens, many lawyers engage, inevitably, in wide ranging, “turn over every rock” discovery, even when any lawyer who has ever tried a case – and any client who has ever paid one to do so – knows that only some fraction of the information and documents uncovered during discovery will ever be offered at trial (or even if not proffered into evidence, made use of for any reason). I am not unsympathetic to this concern on the part of many lawyers and it is not illegitimate. I once won a two week trial that I might have lost if plaintiff’s counsel had pursued a particular line of inquiry with a certain witness, but he never did because he hadn’t uncovered it during discovery.

There are antidotes to this problem and ways to vaccinate against it but that discussion would make for too long an article for a mere blog post, although I have written on some aspects of this problem before on this blog. On a similar topic but in greater depth, I also once wrote an article, after having successfully tried a patent infringement case on behalf of a start up with a small budget and prevailed over a much larger and better capitalized foe, on the exact subject of how to try a patent case without bankrupting the client, which you can find here.

But beyond those practicalities, one of the biggest issues with regard to the costs of litigation and its impact on the statistical dearth of jury trials is the billable hour and the inability of many lawyers – and sometimes clients as well – to see past it. Personally, I would never recommend a client take a case to trial unless I believed in it enough that I would be willing to also have skin in the game myself. Under a billable hour model, though, the lawyer trying the case never truly does. Alternative fee arrangements of some form or another, however, change this dynamic and are the best way to align the client and the lawyer’s interests in going to trial as well as the cost burdens of doing so. More than that, if properly structured to cover the entire litigation process, they can alleviate the distorting effect for clients and the litigation process of the vast expense and burden of discovery.

I could talk about this subject in depth and for a long time. For now though, I just wanted to note that two different prominent big firm lawyers recently referenced the role of alternative fee arrangements in making litigation both more reasonable for clients and often times, if they win, more profitable for lawyers than does a billable hour model. Tony Froio of Robins Kaplan (with whom I had dinner years ago and who offered even then, sage advice that I still quote) referenced in a recent interview in Above the Law that his firm’s commitment to “alternative fee arrangements . . . provide[s] clients with access to trial opportunities that may otherwise be unattainable.” Meanwhile, Bloomberg Law columnist David Lat conducted a long interview with the chair of Latham’s litigation and trial department, in which they discussed the growth of contingency fee litigation as part of Latham’s practice and in the big law world as a whole. Of particular note, Lat expounded on his view that technological developments are likely to increase the importance of alternative fee agreements, explaining that:

The rise of AI will have major implications for law firms—and their revenue models. For starters, I predict the efficiency gains it will eventually create will make billing by the hour increasingly less lucrative, and ultimately less sustainable, for Big Law.

On the litigation side, one possible way to address this problem is by relying more on contingency fees. This ties a law firm’s income on a matter not to the number of hours billed, but to the outcome—which is often something clients prefer.

Creative fee agreements, and a willingness to think through their use in a given case, are the best road to making trials and discovery financially manageable for clients and are really the key to an affordable and effective trial practice for many firms and their clients.

Growing up in Baltimore in the Seventies (you can take the boy out of Baltimore but you can’t take the Orioles out of the boy – go Birds!), I developed a love of horse racing, back in the heyday of Pimlico racetrack and the Preakness. I still remember watching Secretariat run the second leg of the Triple Crown there and the pre-race hype about Seattle Slew a few years later. Horse racing is a lot like lawyering – it has its problems, but it can be a beautiful thing to watch when it’s done right, as it was this past Saturday at the Kentucky Derby.

Among its other virtues, horse racing is a wonderful source of metaphors, and it long ago gave rise to one of lawyering’s most useful sayings: there are horses for courses. I was thinking about that, and the fact that not every horse could have taken Mystik Dan’s remarkable inside run to a win in the Kentucky Derby, while still musing on the summary judgment ruling in Sellers v. Trustees of Boston College, about which I wrote last week.

As has been widely discussed, including by me, Sellers gave rise to a summary judgment ruling that acknowledged the extensive work done by the plan’s fiduciaries to address fee and investment concerns, but found that the work wasn’t enough to warrant a grant of summary judgment in favor of the plan’s fiduciaries. I think it was Nevin Adams who wrote that not all judges would have reached that conclusion, and in this I think he is right. Another judge might have very well granted summary judgment outright to the defendants on the evidence submitted in the summary judgment proceedings, but the judge hearing the action reasonably and defensibly concluded that the record presented just enough of a factual dispute to require trial. This, of course, is where a different horse running this same course might have resulted in a different outcome: another judge might well have found that the defendants had proven a sufficient level of fiduciary due care to justify granting summary judgment for the defendants. To me, this is a question of the philosophy of a given judge, and how much room for interpretation a particular judge thinks Rule 56 grants to the court.

But here’s the rub for me substantively. As I wrote last week, the fairest way to understand the decision seems to be that the evidence presented a scenario in which the defendants should prevail but the standards governing factual issues in summary judgment proceedings appear to preclude entering such an order short of trial. Taking this approach to the breach of fiduciary duty claims in Sellers, however, requires a view of fiduciary duties that is debatable and that I am not convinced the case law requires. In short – and as a number of commentators have noted – the defendants presented extensive evidence in the summary judgment proceedings showing due care in addressing the fee and recordkeeper issues challenged by the plaintiffs. The Court, though, concluded that the expert testimony and evidence proffered by the plaintiffs suggested that it was open to argument whether defendants should have done still more in that regard, and that therefore a fact finder after a trial, rather than a judge at summary judgment, would have to decide whether fiduciary breaches occurred.

The problem with this from where I sit, however, is that it treats fiduciary prudence as infinite, as something that can always be challenged in court as having been insufficient no matter how much was done, and I am not convinced that a proper conception of fiduciary obligations or the case law itself aligns with that view. At some point, a fiduciary has engaged in more than enough prudence to satisfy the statutory obligation, regardless of whether a plaintiff, or his or her expert, can point to more that supposedly could or should have been done. Like almost everything in life, there is always more that could be done, but that alone shouldn’t preclude finding that a fiduciary did, in fact, enough.

It is worth thinking in this regard about how far we have come with regard to fiduciary prudence and the conduct of plan administrators. I have long credited plaintiffs’ lawyers with having raised the bar spectacularly with regard to the care and feeding of participants that is provided by plan fiduciaries. I have long argued that the private attorney general model is both alive in this context and has worked well in improving retirement plan performance and retirement outcomes for participants. We are long past the days when, as a speaker on fiduciary practices, I would warn against what I called the “golf course RFP,” which was basically a plan sponsor giving the contracts for pension and 401(k) plans to a golfing buddy while standing on the 14th green. Today, as opposed to then, I don’t think any serious business executive would ever consider hiring a recordkeeper or another vendor without a full investigation, an RFP or some form of competitive bidding.

To take this a step further, the summary judgment ruling in Sellers recognizes the extensive work actually conducted by the plan’s fiduciaries with regard to recordkeeping and investment selection issues. Several years ago, when I was speaking at an ERISA conference, one speaker, who was in-house counsel to the plan fiduciaries at a large company, explained that the biggest issue he faced was setting the agenda for quarterly meetings of the plan’s fiduciaries, as they would only meet for an hour or two once a quarter. He explained that if the issue was important enough, he would slot it in for 20 minutes on the agenda. I recall thinking at the time what great deposition testimony that would be for plaintiffs’ counsel if his employer were ever sued for breach of fiduciary duty, because how much less fiduciary prudence could there be than limiting the extent of investigation and consideration based simply on the length of time available at a meeting. Now contrast that to the extensive work credited to the fiduciaries in Sellers by the summary judgment ruling: the two courses of conduct have as much in common as a Yankees fan does with a Red Sox fan.

Given this, it is worth noting that the extensive fiduciary prudence that the summary judgment record recognized was engaged in by the fiduciaries in Sellers might be more than was required of the fiduciaries, even if, as the plaintiffs in that case claim, there was still more that could have been done. If so, then it would have been both fair and legally appropriate to hold that summary judgment, despite the factual issues asserted by the plaintiffs, could and should be granted to the defendants. Summary judgment is only barred by a genuine issue of material fact, not by any dispute of fact. If the Court in Sellers were to have held, as I believe the law could allow, that the fiduciaries had been required to reach a certain level of prudence but not to satisfy an infinite one, the Court could have also reasonably held that the fiduciaries in Sellers, on the record set out in the summary judgment ruling, had reached and passed that level, rendering the factual disputes raised by the plaintiffs immaterial and justifying the entry of summary judgment in favor of the defendants – and all of this without changing the facts presented by all sides even one bit, and by instead just recognizing that at some point, a fiduciary exceeds the level of care that he or she is legally obligated to render.

And thus the real question raised for me by the otherwise substantively excellent summary judgment opinion in Sellers is this: does the law really require an almost infinite possible level of care by ERISA plan fiduciaries to an extent that only a fact finder, after hearing every bit of evidence at trial, can determine what the required level of care is? Or does it demand only a certain level of care, one that is sufficiently quantifiable that a court, passing on it on summary judgment, can declare whether or not it was reached? I would suggest that if it is the former, and not the latter, it may be time to reexamine the question.

I suspect every client I have ever represented in litigation can testify that I am overly fond of the old saying if you have the facts, argue the facts; if you have the law, argue the law; and if you have neither, jump up and down and scream. In my view, most of the time, you are better off having the facts on your side then either the law or a good scream. This is because it is a relatively rare case where the controlling legal principles are so clear and unambiguous that a good lawyer, holding a good poker hand of facts, cannot get around a body of law running against his or her client.

I couldn’t help but think of this point after reading Judge Young’s summary judgment ruling in the excessive fee case brought against Boston College, Sellers v. Trustees of Boston College, as well as some of the commentary already written on the decision. (By the way, given that the opinion runs to 126 pages, you may prefer the commentaries to the source material, and if so I am partial to the two published recently by Nevin Adams and Daniel Aronowitz, which you can find here and here). There is an extremely good argument to be made that Boston College demonstrated in its motion papers a level of prudence factually sufficient to defeat the excessive fee claim, but the court essentially found that they did so in the wrong forum: at summary judgment, and not at trial. Judge Young’s opinion recognizes that a fact dispute alone, if material, is enough to preclude summary judgment and requires a trial even if, as frankly appears to have been the case here, the defendant has proven it is likely to prevail.

Having read the opinion and some of the commentary, I don’t disagree with the premise that a fact finder could easily rule in Boston College’s favor on the excessive fee claim on the evidence presented by it in the summary judgment proceedings. But the plaintiffs met their burden of showing a credible factual dispute for trial as to the prudence of the defendants, one that precluded summary judgment unless the court was going to actually decide the factual disputes, which it cannot properly do at summary judgment under the federal rules. While the rules and case law interpreting them allow the court some leeway in passing on the likelihood of success in a case at the motion to dismiss stage, the same is not true with regard to summary judgment. On summary judgment, the question of the likelihood of success at the end of the day is not technically relevant, and instead the case must proceed to trial unless undisputed facts clearly preclude one party or the other from possible success at trial.

In breach of fiduciary duty cases, that can be a hard bar to reach. The standards are so fact sensitive, the underlying conduct often so opaque, and the room for dispute so broad, that establishing at summary judgment that the plaintiff cannot, under any circumstance, prevail at trial is often a bridge too far. To me, this is why so often you see courts enter partial summary judgment in favor of defendants in breach of fiduciary duty cases, but not outright wins, with the court often leaving in place just a small sliver of the original claims for trial. The standard to obtain summary judgment is so hard to meet in the context of such claims that disproving the entirety of a plaintiff’s case at summary judgment is unlikely, but disproving a significant chunk of it is more realistic.

There is nothing wrong with that outcome, by the way. It can often be enough to frame the case and the exposure so that an appropriate settlement is possible and, if not, to give the parties a chance to focus at trial on only what truly remains in dispute. For many parties and in many cases, that is nearly as productive an outcome from summary judgment proceedings as an outright win would have been.

Many years ago, back when we were closer to the tipping point where 401(k) plans replaced pensions for the majority of employees, there was a great deal of discussion about whether employees could possibly be financially ready to retire at age 65 absent pensions. I argued at the time that the discussion was wrong and that the age 65 attribution for this analysis was archaic and distorted the conversation. I was correct about that, and the realities of the interaction between retirement funding and pushing retirement dates back a decade are now a mainstream topic, as this excellent article from the BBC, which in turn is responding to BlackRock CEO Larry Fink’s much discussed commentary on the subject, shows.

However, my past comments on this issue were criticized by some commentators as possibly being true for professional and managerial workers but as ignoring the fact that extending working life another decade or so for people with physically demanding jobs may be unrealistic. I have come over the years to think those critics were correct. While John Kerry may be able to say with a straight face these days that, with regard to his work, “80 is the new 60,” I highly doubt it is for the painter working out in the hall of my office building right now.

I mention this now only because, while the BBC article is an excellent discussion and demonstrates a renewed focus on this issue, it too assumes that most people work at desk or similar jobs that are not too physically demanding for someone to continue working at into their late sixties and early seventies. I would now suggest that critics of my views from a decade or more ago on this subject were correct when they argued that the solution to retirement readiness for people with physically demanding jobs cannot simply be the advice “work another ten years.”

I began writing on climate change as a litigation and insurance issue back in 2007 and have been writing on the role of insurance as a potential and actual driver of climate change policy since at least 2010. Since then, it has become clear that the single greatest corporate driver of changes intended to avoid the worst impacts of climate change will be the insurance industry. As I explained here and here (among other posts), the substantial economic impacts and financial losses that will result from climate change will pass through the insurance system first, making climate issues central to the future of the industry. Leading figures in the insurance industry have been planning for this for 15 years or longer.

This BBC article on the subject is as good as I have read in the past 20 years on the topic. It explains in detail the relationship among climate change, insurance underwriting and policies issued to insureds.

This is a great story in Plan Adviser on the past and future of ERISA litigation over 401(k) plans. It’s a fun and short read, neither of which is normally true of articles on this subject. That’s a little tongue in cheek, but that phenomenon is nobody’s fault: when I have written on the subject, I have an awful lot of trouble reining in the word count. At its core, the article presents the question of whether the long and highly contentious history of this area of litigation has actually benefited participants.

There are three points from it that I wanted to touch on. First, a defense lawyer argues in the article that while there have been many large settlements, they were simply made for business reasons and not because of potential liability. She argues that the underlying fiduciary actions have, and continue to be, proper and that, as a result, defense lawyers would have liked to try more of these cases to conclusion, but business concerns argued against that approach. I don’t know about that, myself. While I have long argued that plan sponsors and their insurers should be aggressive about taking these types of cases to trial, I have long felt like a voice in the wilderness on this point and have only noted others agreeing with my take since the recent high profile defense win in the trial involving the Yale retirement plans. I hope the tide, and appetite for trial of defendants in this area, is turning, but we will see.

Second, Paul Secunda, who once served as my expert in an ERISA dispute back when he was still in academia, makes what I think is the reasonable point, which is that fees have declined during the history of this type of litigation and attributes it to the potential and actual litigation exposures faced by plan sponsors and fiduciaries. I haven’t looked at the numbers on this, or looked critically at the data on it, in a long time, but that matches my sense of the matter. Even if Paul is right, though, as I think he is, there should be no shame in that for plan sponsors. The threat of litigation has always been a powerful force in getting people to look closely at established business practices that, through no fault of anyone and for no nefarious reason, have simply operated on autopilot but should be improved upon.

Third, the article ends with some excellent advice to sponsors in the “mid-to-small retirement plan market” that they worry less about the legal exposures and more about their processes and the outcomes for their participants. The problem with the advice is that, for many smaller plans, getting a strong outside TPA or other vendors who can help execute this advice can be very difficult. Larger service providers often aren’t a good fit for smaller plans, and many third party administrators who focus on that market are, in fact, only interested in making the sale, not in bulking up staffing and expertise to the level needed to fully serve that type of sponsor. I mention this only as a sort of supplement to the speaker’s advice to sponsors of smaller plans. It is good advice, but it can be hard for plans that size to obtain the outside expertise needed to execute it.

I have somehow managed to escape the trap many litigators find themselves in, of being almost exclusively a plaintiff’s lawyer or instead a defense lawyer. Over the past 35 years, I would guesstimate my practice has totaled out to about a two to one split, favoring defense work. Personally, I like both types of work, the variety in cases keeps the work interesting, and I think sitting at both tables gives you a more well-rounded set of skills. On that last point, when I was a young lawyer, an older trial lawyer pointed out to me that lawyers who prefer to counterpunch (metaphorically speaking, of course) are often better suited to, and more likely to prefer, defense work. I find that doing both types of cases has, over the decades, forced me to develop a whole range of styles in the ring (again, metaphorically speaking).

But one of the more interesting things the variety has done for me is leave me with an open mind about the role of juries, and kept me from imbibing the corporate and defense world’s tendency to either be skeptical about them or even outright afraid of them. I have found over the years that they get the outcome right about the same percentage of times as judges do in bench trials. I have written a number of times on my view that juries bring a great deal of strength to the courtroom process, such as here and here. Sometimes, I have to say, that view has provoked some good natured complaints from some of my professional brethren, but that’s all right – horses for courses and all that.

But given my views and my writing on this subject in the past I was very pleased to find, in this article in Massachusetts Lawyers Weekly, a comment from the dean of the defense bar, Bill Dailey, praising juries and the jury system. As he put it:

But over all these years, I’ve found that juries can be very objective, and if they feel that there has been no error made, while there’s maybe a great amount of sympathy surrounding the facts in the case, they’re able to make a fair decision,” Dailey says. “I admire jurors for doing that. That’s how the system has to work if it’s going to work.

I rest my case.

I didn’t want the week to end without passing along this story from Massachusetts Lawyers Weekly on the First Circuit’s decision in Lawrence General Hospital v. Continental Casualty Company. In the decision, the First Circuit reaffirmed the principle that Covid shutdowns did not trigger business interruption coverage in insurance policies, as most courts have held to date. The Court did, however, find coverage under a different portion of the relevant policy, which expressly provided “disease contamination coverage.”

The coverage, policy language and economic issues at play in the question of whether business interruption coverage in insurance policies was triggered by pandemic era shutdowns have been widely discussed, and clearly the insurance industry has won those arguments. This case isn’t to the contrary, but instead finds coverage only under a separate policy provision that directly covered orders shutting down operations in response to certain health related events.

What’s more interesting to me, however, and which I wanted to pass along, was the comment by a policyholder side attorney, Andrew Caplan, that the case “shows how important it is for coverage attorneys to carefully study a policy and make coverage arguments based on specific policy wording as opposed to general coverage case law interpreting standard policy wording.”

I think he is absolutely right, and it’s a point that many lawyers – especially generalists who aren’t coverage experts – miss when they litigate coverage disputes. Far too often, lawyers get bogged down in the broad pronouncements that populate judicial decisions in this area, about topics such as ambiguities in insurance policies or the interrelationship of later issued endorsements with the terms of the main form of the policy. Most often, these types of comments in judicial decisions shed more heat than light, and if you study the decision closely, you will find that the decision turned, not on those types of generalized pronouncements, but instead on very precise evaluation of specific words in the policy. The key to winning these types of cases, as Caplan points out, is to focus on the specific policy language at play, not on general rules applicable to insurance policies, and to argue accordingly – in many ways, as a lawyer would with any other type of a contract.

The First Circuit’s decision in Lawrence General Hospital perfectly illustrates this point, particularly with regard to the Court’s discussion of the disease contamination coverage. The Court structures its analysis around certain broad principles that govern the interpretation of insurance policies, but those standards do not drive the decision. Instead, it is the Court’s molecular level (pun intended) analyses of the language and facts, conducted within the framework provided by those broad principles, that the decision is based upon.

It’s very difficult to write with any nuance about discretionary review under ERISA plans, or what is more typically referred to as “arbitrary and capricious review.” I believe it is because it’s one of those areas of the law where, even more than most, where you stand depends on where you sit. In other words, if you are a plan administrator or sponsor, or a lawyer representing one, you think it describes a standard of review that should broadly insulate plan decisions from challenge, while if you are a plan participant, or a lawyer who represents plan participants, you think the entire doctrine is a wrong road that the Supreme Court set off down years ago without thinking and from which no one can now exit.

As someone who has represented everyone from plan administrators to plan fiduciaries to pension plan participants to executives entitled to compensation under top hat plans, and everyone in between, I can argue all sides of the question of the appropriate scope of the standard of review in ERISA cases, including what is the right way to apply arbitrary and capricious review. To me, the issue is not black or white, night or day, but all shades of gray (or grey, if one of the parties is English). Applying discretionary review in a given case is or should be, contrary to much argument, a fact and case specific inquiry, shifting with the facts, the plan language, the benefit to the plan sponsor of a particular decision and the interpretive approach taken by the plan administrator in a given case– indeed, with the very epistemology itself of the plan administrator’s approach.

The problem, though, is that in the real world, arbitrary and capricious review is often little more than a shibboleth that precludes, rather than encourages, careful thought over these issues. Too often, it is used simply as a stand in for the very different, and oft unarticulated, assertion that, unless the administrator was transparently and obviously wrong, the decision at issue should be upheld. This is not what arbitrary and capricious review, properly understood, is meant to be, nor what the phrase is meant to convey, which instead should be a nuanced and thoughtful analysis of plan language and facts to determine whether the administrator deserves the benefit of the doubt that is encapsuled within the phrase “arbitrary and capricious review.”

In any event, this is all a long way of introducing a new post by Daniel Aronowitz in the Fid Guru blog, in which he discusses the fact that “United Behavioral Health (UBH) has petitioned the Supreme Court for the right to deny doctor-recommended residential treatment of adolescent patients with serious mental health issues when interpreting what is ‘medically necessary’ under health plan documents.” The post concerns whether UBH was within its rights, under arbitrary and capricious review, to deny treatment, but treats the application of that standard to this dispute in the kind of subtle and detailed way that I suggested above should be the rule, not the exception.

The Supreme Court today hears argument in a case concerning many politicians’ and lawyers’ favorite pinata, the Chevron doctrine. It would likely be naïve to believe that the case won’t at least further restrain agency authority and discretion, although whether the case will be the vehicle for complete abrogation of the doctrine is beyond my tarot card reading powers. Robert Steyer addresses what this development likely means for the retirement industry and ERISA governed entities in an excellent article in Pensions & Investments, titled “Industry Eyes High Court on Chevron Deference.”

As I discussed in my comments in the article, my own view is that, for the most part, the retirement industry is best served – as are most of its participants – by the maintenance of a reasonable status quo from a regulatory perspective. For a whole host of reasons, big regulatory swings in either direction aren’t generally in the best interest of any member of the ecosystem, whether that is in the form of new initiatives or the presumptive eventual elimination, as a result of the demise of Chevron, of existing ones. To be fair, of course, there are circumstances in which regulatory initiative or change is valuable – for example, it is hard to have a new asset class offered in retirement plans if you don’t create a regulatory regime for doing so. But overall, consistency counts and an undercutting of agency power, if it were to lead to churn in the regulatory environment for retirement plans, isn’t likely in anyone’s best interest.

But time will tell. And unlike some of the other commentators quoted in the article, I would not be sanguine that, if the Supreme Court eliminates Chevron deference or even just significantly cuts back on agency authority, it won’t, at least over time, have the effect of altering the regulatory and investigatory environment in which ERISA lawyers and their clients operate.