There was a tremendous amount of excellent media to read, watch or listen to this past week concerning insurance and ERISA issues. I am hitting five of my favorite ones in today’s post, starting with one from my favorite newspaper.

  1. A couple of weeks ago, writing about the relationship of insurance to shipping through the Strait of Hormuz, I referenced Lloyd’s of London’s history with risk and with shipping, calling it the Indiana Jones, in popular imagination, of maritime risk. And true enough, as this article explains, even now Lloyd’s will insure shipping risks in the Middle East, but at historically high rates. However, of more significance appears to be the lack of appetite of the insureds themselves for the risk, with or without insurance cover. It’s a good reminder that no matter how important insurance is, it’s not supposed to be the tail that wags the dog, but just the tail. (That last comment is a deliberate insurance pun).
  2. There is absolutely no question that the future will (and to some extent the present already does) involve using AI for claims processing. Insurance, including claims handling, is so innately an information and data intensive business that it is inevitable. But as I have written before, AI in claims handling is going to pose litigation and liability risks for insurers, including potential bad faith exposure. Take Massachusetts law, for instance, where settlement offers have to be both reasonable and based on reasonable investigation, at the risk of potentially significant statutory damages. It’s very easy to see how lawsuits could be constructed that AI usage in determining a settlement offer or investigating a claim violated one or both requirements, simply by demonstrating bias, oversight or errors either built into the software and its algorithms or as part of its application to a specific claim. And we are now, as this article shows, seeing the outlines of a discovery regime that will allow discovery into this exact topic.
  3. In early days, as they say, when it comes to the use of Target Date Funds in 401(k) plans, the question of whether their inclusion in plans might be a fiduciary breach was hotly debated at ERISA litigation conferences. I know, because I was there (in the audience, not as a speaker). The debate was notable just as much for the extent of polarization over the question as for the ferocity of the debate. But time went on, Target Date Funds became central to the operation of many 401(k) plans, and most people appeared to forget about the issue. Part of the plaintiffs’ class action bar clearly did not, however. The debate back then was focused on the glide paths of the funds – and the plaintiffs’ class action bar has now filed numerous ERISA breach of fiduciary duty class actions targeting that exact issue, as discussed in this article.
  4. This is an odd but interesting story from the ABA business section on the intersection of AI with ERISA class action litigation. There is a lot to like about it but also some underlying premises that are just plain wrong, in my opinion. The article, on the plus side, delves into the extent to which litigation against plan sponsors is hobbled and restricted to some extent by the lack of transparency in both public filings and investment products related to retirement plans. And there is some truth to this, which has been countered over the years to a significant degree only by the ever increasing knowledge base and sophistication on these issues of the better lawyers in the ERISA class action space. The article’s pitch is that AI tools can attack that problem by developing detailed evaluation of key issues despite this lack of transparency in the industry. And that may very well be right. But on the negative side of the ledger with regard to this article is its fundamental premise that plaintiff friendly precedents are making it ever easier to bring these types of suits, which I wouldn’t agree with for a second. From class action rulings that make it harder to certify a class, to standing decisions that make it harder to get out of the blocks with a case, to benchmarking disputes, the most important recent decisions are running against the plaintiffs’ class action bar right now. Regardless, the article is a good read.
  5. Well, there is thought leadership and then there is thought leadership writ large. I really like Duane Morris’ ERISA Class Action Review 2026, which was just released. I read a lot of the ERISA publications issued by the large class action defense firms and this one is a cut above almost all of them. What I really like about it isn’t just its comprehensive review of the key decisions to date but that it also discusses in depth where this area of litigation is going from here. Don’t miss the summary and chart discussing the largest settlements of 2025 either – you can draw a lot of conclusions and thoughts on settlement and liability issues if you think carefully about that data.

The first case I tried as a first chair was a Chapter 93A case.

The first big money – north of $20 million – case I ever tried as a first chair was a Chapter 93A case.

The most recent case I tried included a Chapter 93A claim.

In between and mixed among them, I have tried patent infringement, contract, pierce the corporate veil, reinsurance, product liability, construction accident, reinsurance and a number of other types of cases.

But there was always a difficulty in drafting proposed conclusions of law at the close of the case that was unique to the Chapter 93A cases and absent from the others. This was due to the fact that many principles of Chapter 93A liability that are generally accepted by courts and Massachusetts lawyers cannot be cited to a particular leading decision. Instead, they often must be supported by analogy or inference, rather than by directly citing to a controlling decision on the issue.

The Massachusetts Appeals Court’s recent decision in Agnitti v. Philip Morris resolves this problem for at least three principles of Chapter 93A law in Massachusetts.

First, it offers a handy cite to a principle that is clearly the law, which is that all of the underlying common law or statutory causes of action, such as in Agnitti for product liability, can fail and you can still recover for violation of Chapter 93A. The case makes for an easy cite on the proposition that a Chapter 93A claim stands on its own and can allow recovery based solely on its violation, regardless of any other cause of action pled in the action or the outcome of such causes of action. Not exactly a novel principle of law, but certainly one that the case makes easy to establish from here on out – which was not necessarily the case before the decision, as evidenced by the erroneous jury instruction given on this point at the trial.

Second, not too long ago, I was defending a Chapter 93A case premised on alleged misrepresentations. Establishing the exact elements necessary for the plaintiff to actually recover under Chapter 93A in that circumstance required stringing together a series of different cites. The Court’s ruling in Agnitti states quite definitively what has to be proven to prevail on such a case.

And finally in this regard, the Court buried in the footnotes a direct and clear statement of causation in the context of a Chapter 93A claim based on misrepresentations, explaining the exact nature of the causal relationship needed to recover. That quote alone will save a lawyer a half page of cites and explanation when discussing causation in Chapter 93A actions in the future.

I found myself feeling very zen and mellow when writing this week’s Five Favorites for Friday post. That’s not always the case, as often the post covers topics that get me quite agitated, such as articles about poorly reasoned court decisions or about unnecessary risks to plan participants. That wasn’t the case this week and I think I know why – because all five articles are basically educational pieces on complex subjects and basically teach something or another to the reader. That’s not something that gets me worked up but instead is something that gives me great pleasure to write about.

So here’s hoping that on a Friday morning, as we wait for March to go out like a lamb, the articles do the same for you.

  1. Lawyers often have aspects of their practice that act as leading indicators for economic conditions, particularly with regard to shifts in the labor market. For me, one of those is when there is a substantial uptick in clients looking for guidance with regard to issues concerning deferred compensation, 409A issues, company solvency and their interrelationship. This article may be the single best comprehensive, one stop shopping review of these issues I have ever come across – and I have read a lot on these issues. It’s a great overview and high level guide to the subject.
  2. Speaking of guides, Brian Gilmore speaks plain English about the complexities of ERISA compliance as well as anyone and better than almost anyone. His newest publication explains wrap plans and wrap summary plan descriptions for ERISA health and welfare benefit programs in, well, plain English.
  3. I have a number of friends and clients in the medical world who are concerned about the role of private equity in the ownership of medical practices. As this article points out, however, there are legitimate economic barriers to the old fashioned model of younger physicians simply buying practices themselves from retiring physicians as an alternative. Anyone can identify a problem and its causes, but the article goes one step further and proposes a solution – medical practices as ESOPs. If, like me, both ESOPs and the role of private equity in the economy are among your interests, it’s a very good read.
  4. With a few notable exceptions, ERISA class action suits alleging the wrongful use of forfeitures by plan fiduciaries have not gone very well for plaintiffs so far. However, the theory hasn’t been tested yet at the appellate level. That is about to change, and with it possibly the future trajectory of these types of cases, as this article discusses.
  5. I hope this last one for this week is not behind a paywall (I try to limit how many articles I include in this weekly post that may not be readily accessible to loyal readers of this feature) because it is legitimately one of the most fascinating articles I have read in awhile. Granted, my personal interests are a little esoteric, in that I am fascinated by both the logistics and complexities of retirement plan administration as well as the ins and outs of cyber risks and liabilities. I have argued both cyber breach and retirement liability cases to appellate benches, though never in the same case. This article, though, reviews the landscape when both issues overlap.

I have written before that plan sponsors should try more ERISA breach of fiduciary duty cases to verdict if they, and their insurers, really want to dissuade class action lawyers from filing ERISA breach of fiduciary duty class action cases with weak liability theories or worse, as simply a strike suit targeted at getting a quick settlement simply because the costs of defending against it could be so high. The thesis was simple – if plaintiffs’ class action lawyers know they are going to have to try these cases, no one is going to bring weak cases on the expectation that someday, one way or the other, a settlement with a sizable attorney fee award will appear.

It’s sort of a Darwinian approach to thinning the herd – the near certainty of having to litigate through trial will drive down filings of class action ERISA cases, leaving behind only the serious cases brought by firms willing to invest in a long fight to prove they are right. With that, the strike suits and cases against small plans and claims based on dubious theories go by the wayside.

As if on cue, shortly after I wrote that argument in a post, Yale defeated a significant and highly publicized ERISA breach of fiduciary duty case at trial, in front of a jury no less.

But the defense bar, plan sponsors and insurers didn’t take that as a sign to press forward to trial on these types of cases. Part of the problem with doing so is the immense cost of discovery that ends up being incurred before trial can ever be reached. Whether for that reason or others, the defense focus over the past few years has instead been on the development of arguments that can be raised at the outset of cases, in an effort to end them before massive discovery costs can be incurred.

Now there’s a renewed front in that approach that may have far bigger consequences in the long run than may initially be apparent to many observers. In my most recent Five Favorites for Friday post, I discussed a Fourth Circuit decision from last week, Trauernicht v. Genworth Financial Inc., in which the Court overturned class certification in an ERISA breach of fiduciary duty case involving target date funds, ruling that the class had to be certified, if at all, as an opt out class. The Court delved in great depth into the reasons why, in its view, a class could not otherwise be certified.

Viewed from the perspective of a defense lawyer, the decision begs defense attorneys in all circuits to test class certification in ERISA breach of fiduciary duty cases and to litigate whether a class is proper. There are many complex issues buried in Trauernicht on the propriety of certification in different circumstances, which I am not going to address here (doing justice to them calls for a law review article, not a blog post), but it is already clear that it would now be malpractice for any defense lawyer to fail to fully evaluate and likely to fight class certification with real vigor in any ERISA breach of fiduciary duty class action.

But if you consider the decision from the perspective of plaintiffs and their counsel in this area of the law, I have some real questions. I have litigated class certification in ERISA cases in the past from both sides of the aisle, and the decision leaves me wondering as to whether the original problem in this case was actually simply poor line drawing with regard to the class by plaintiffs’ counsel, with that mistake eventually snowballing from there into a very pro-defendant opinion by the Fourth Circuit. Regardless of the answer to that question, the very existence of the opinion in Trauernicht at this point means that, on all issues necessary to establish class certification, plaintiffs’ counsel in ERISA cases are going to have to be very careful as to how they pursue certification and are going to have to confront a number of issues that, at a minimum, they didn’t previously have to take on in the same level of depth to obtain certification.

Trauernicht, barring Supreme Court reversal or other circuits rejecting it, is a big win for the defense in these types of cases and will be as significant a barrier to ERISA class action cases as anything else currently being pressed by the defense bar in cases throughout the country. Indeed, as this post goes to press, the latest news is about a District Court judge in the Fourth Circuit reversing a prior order of class certification in light of the Trauernicht ruling.

This week’s Five Favorites for Friday is truly driven by current events, with stories spanning shipping in the Middle East, the most recent ERISA class action decisions, and rising concerns about including alternative asset classes in 401(k) plans.

  1. Courts tend to course correct over time when it comes to class action litigation, with the goal of finding the right balancing point where potentially meritorious claims can proceed but the gate is sufficiently barred against strike suits intended primarily to generate fees for the lawyers. ERISA is having that moment now, as Congress, regulators and the courts try to find a way to reduce the filing of questionable class action claims without choking off valid claims, after fifteen or so years of steady development (both in numbers and in success) of this type of litigation. The latest approach is to require the plaintiffs to plead that an investment option challenged in a complaint is underperforming relative to a reasonable benchmark, and to dismiss the action if the complaint lacks such a comparison. But as this Bloomberg article on one such dismissal reflects, what is and what is not a reasonable benchmark in this circumstance can be very much in the eye of the beholder. And one solution to that problem, again as the article discusses, can be for a court deciding a motion to dismiss to give the putative class multiple opportunities to find and plead a benchmark that the court considers reasonable. Some might say that giving the putative class multiple bites at the apple on this issue defeats the purpose of using motions to dismiss to cost effectively weed out meritless claims. Others, though, including me, might suggest that it is a reasonable way for the court to use motions to dismiss to bar the gate to the courthouse in appropriate circumstances while examining a case sufficiently to avoid barring potentially meritorious claims.
  2. The central theme of a great deal of commentary and judicial decisions in the area of ERISA class actions concerns the need to keep the courthouse doors open to meritorious cases while still limiting the extent to which dubious claims are allowed to proceed into full blown litigation, with the accompanying costs to plan sponsors and their insurers. Even when not said out loud, this premise is never far from the surface. The Department of Labor has been filing amicus briefs that seek to help draw the line between the two types of claims, and is doing it pretty well so far in my opinion. This is a great post discussing those filings.
  3. Speaking of meritorious claims, I remember when defense lawyers in ERISA class actions would sometimes forego fighting over class certification so that they could get on with the real business at hand, which was litigating the merits of the ERISA claims at issue. Now we have a new decision from the Fourth Circuit decertifying a class in a putative ERISA class action and sending the case back to the District Court to start over, based on highly technical but also factual considerations for class certification. Here’s a good story on it. This type of analysis and approach by a court certainly raises another barrier to the prosecution of ERISA class actions, but I am not convinced it gets anyone any closer to culling the wheat from the chaff when it comes to keeping the courthouse doors open for meritorious ERISA class actions but not for others.
  4. Lloyd’s is the Indiana Jones of insurers. They will go anywhere and insure anything, at least in popular imagination. To me and others who follow the industry, they are more accurately understood as an entity that understands risk, the numbers behind them and what to do about it. As I discussed in a blog post way back when, for instance, Lloyd’s started tackling what climate change meant for insuring risks long before anyone really discussed the issue publicly in any depth. For now, publicly, they are insisting they are still insuring shipping in the Middle East, but for how long and at what price? This is a good article on the subject, but one wonders how long any article on this subject will remain current. Still the issue is about as important as there is in the insurance world at this point. Maybe we should just check back when we get to next Friday’s Five Favorites and see where things stand at that point?
  5. I have written extensively on what plan sponsors and fiduciaries should do to protect themselves when it comes to adding alternative asset classes into the 401(k) plans they run, including here and here. Some of the most experienced people in finance are now also sounding the alarm about the risks of allowing them in.

It’s been a fascinating week in insurance and ERISA news, making it a good week to be the author of an ongoing weekly series on hot topics, articles, posts and the like in these areas of law. Interestingly (to me, anyway), the first three stories directly concern cases and issues I have litigated many times in the past, including at the Massachusetts Supreme Judicial Court and in the First Circuit.

  1. Probably the most interesting news in the insurance world this week was a Delaware court’s decision that Meta is not entitled to insurance coverage for defense costs incurred from social media addiction claims. As Bloomberg reported, Meta’s liability insurers “are off the hook for its defense costs in litigation alleging the tech giant got kids hooked on its platforms,” finding that the “lawsuits didn’t present an ‘occurrence’ that would trigger coverage because they alleged only intentional conduct by Meta.” I have seen a fair number of articles and posts suggesting that this finding reflects some sort of a broader action by the court than just a focus on the terms of the policies and how they apply. However, there is nothing new about a court finding that a complaint alleging harm to minors cannot trigger a defense obligation because the alleged conduct can only be understood as involving some degree of intentional harm. The first case I briefed to (and won at) the Massachusetts Supreme Judicial Court decades ago involved whether an intent to harm precluding a duty to defend could be inferred simply from allegations of sexual misconduct in the complaint.
  2. I don’t usually use one of the five slots in my weekly Five Favorites post to discuss a new judicial decision, but I suppose the rules don’t preclude it. I had expected to write a full-blown blog post on this new decision from the Massachusetts Appeals Court on a dispute over an individual disability policy but time and workload haven’t allowed, so I will talk about it now. The Court reversed a trial court decision to instead find that a limitation on the amount of coverage under an LTD policy was applicable. The decision is interesting for a few reasons. First, the Court decided it as a matter of insurance law principles and not as a matter of ERISA law. As a result, it provides a very nice, step by step summary of what the rules are for interpreting an insurance policy under Massachusetts law. Second, it is interesting because the Court flipped the decision below, ruling in favor of the disability insurer despite applying state law and not the standard of review under ERISA for judging a claim for disability benefits. The federal standard of review under ERISA governing this type of a claim is routinely characterized as overly friendly to defendants, but this case shows that the outcome of a dispute over the meaning of a disability policy may remain the same regardless of whether the ERISA standards or state law insurance tests are applied. That may be a bit of a shock to those who believe that one of the great flaws in ERISA jurisprudence is the establishment by the Supreme Court of a very favorable standard for defendants against these types of claims under ERISA. And finally, I would have liked to have seen the argument, as I know both lawyers, they are among the most experienced benefit litigators in town, and the argument was a bit of clash of titans in that regard. The defense counsel, Joe Hamilton, and I once spoke on a conference panel in Chicago on ethics rules governing ERISA claims, and plaintiff’s counsel, Mala Rafik, was probably the plaintiffs’ counsel on every other LTD claim I defended when I first started handling those types of claims. I have recovered attorneys’ fee awards in more than one ERISA case where I have represented the plaintiffs, but Mala remains the only plaintiff’s counsel in an ERISA action who ever recovered an attorneys’ fee award from my client.
  3. I really – and I mean really – like this story about a plan sponsor suing a service provider for problems with a health care plan and the court concluding that, at least for purposes of deciding a motion to dismiss, it was irrelevant that the contract between the parties expressly declared that the provider is not a fiduciary of the plan. As the article puts it, the court held that the “plan sponsor plaintiff has presented a case sufficient to rebuff arguments that a healthcare brokerage/consulting firm wasn’t acting as a fiduciary, despite a service agreement that asserted it wasn’t.” I have litigated and arbitrated this exact same defense in various contexts, including with regard to self-funded health plans, for decades. It can make for some really entertaining arguments at summary judgment, and very interesting discovery tangents, as the parties try to show that the service provider did, or instead did not, have sufficient discretion to qualify as a fiduciary. Thinking about some of the lines of deposition inquiry that were pursued on this point makes me smile even now as I write this.
  4. I have been arguing for some time that the question of whether plan sponsors and fiduciaries should allow private equity investments into their 401(k) plans is not clearcut, and that fiduciaries will have to consider an awful lot of subtle points – many of which they may not have the expertise to evaluate – to make this decision. This is not a new piece from Vanguard but it reappeared in my feed this week in response to various discussions of the increasing velocity towards the addition to plans of these investment options. It does an excellent job of explaining how many moving pieces there are that have to be considered in allowing such assets into plans. My concern for plan fiduciaries is that, as the article demonstrates, there are too many moving parts that a plan fiduciary will have to get right to be able to safely or prudently include the investment class in their plans. The article may not be that new, but the topic is still one of my favorites of the past week’s business news cycle.
  5. One of the most darkly amusing moments in breach of fiduciary duty litigation is when a corporate officer or company owner discovers – or is told, sometimes by a court – that no matter what they thought, they were actually a fiduciary. Along these lines, I often refer to defendants who find themselves to be fiduciaries without having been named as one in the plan documents and without having meant to take on that role as “accidental fiduciaries,” a term which often more accurately captures their status than their drier and more official title as “deemed” or “functional” fiduciaries. Here’s an excellent article on how they end up in that seat, what kind of conduct can impose that status on them, and what their duties are in that circumstance.

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.