One of the themes I have returned to time and again with regard to excessive fee and other class action litigation under ERISA is that the traditional litigation approach deployed for years by the plan sponsor community needs to be updated. With some variation, it has followed the traditional defense model typically used in class action defense, but in the context of ERISA class action cases, it has too often resulted in a motion to dismiss, followed by amended complaints, followed by more motions to dismiss, followed eventually by a version of an amended complaint that passes muster, followed by very expensive and broad discovery, followed by summary judgment practice that resolves only part but not all of the case, eventually followed by settlement after defendants and their insurers have already spent a fortune on discovery and motion practice. This pattern, and whether it is effective, took central stage in much of the discussion of the summary judgment ruling a year or so ago in the excessive fee class action filed against Boston College, as I discussed here and here.

My own concern about this model started over a decade ago, when it took me three motions to dismiss, each targeted at a new and amended version of the complaint, to finally obtain dismissal with prejudice of what I considered from the outset to be a meritless class action case, one that after discovery – if the case wasn’t dismissed – would inevitably be won by the defendants at summary judgment. However, it was crucial to prevail early, at the motion to dismiss stage, because the costs of discovery before getting to summary judgment would have been onerous. Even more than other types of litigation that I have handled, including IP litigation and multi-million dollar insurance disputes, there is something about ERISA cases that makes discovery broader and more expensive than in most other types of cases.

One of the topics I have talked a lot about recently with insurers and plan sponsors, as well as written about, is the idea that the Supreme Court’s recent decision in Cunningham v. Cornell contained an open invitation for defendants and their lawyers to break away from this model in ERISA class action litigation, by using the tools available to them under federal practice to ask district courts to assert more control over these types of class action cases at various points in their lifecycle and by focusing district courts on specific opportunities to decide outcome determinative issues early in a case, rather than later at summary judgment after extensive, expensive and often irrelevant discovery has been conducted.

I have been advocating for defense lawyers, their clients and their clients’ insurers to take advantage of this opportunity to seek reordering of the standard and accepted norms for litigating ERISA class actions, and to affirmatively try to find opportunities to have courts decide outcome determinative issues at as early a moment as possible, often long before summary judgment on the case as a whole could be pursued and, with any luck, even long before extensive discovery has been undertaken.

Most ERISA class actions, and in fact most ERISA cases, have a few outcome determinative issues in them that will determine liability – whether that be standing, statute of limitations, the role of ESG in investment decisions, the underlying rationale for including certain investments in a plan’s menu, causation or other issues that are likewise similarly discrete. There is no reason, if a case can’t be resolved right off the bat under the traditional plausibility test for deciding a motion to dismiss, to litigate all of the other issues in that type of a case all the way through discovery and to summary judgment motions before that discrete issue – one that might moot everything else – is decided. Whether it is seeking bifurcation so that only the single discrete, outcome determinative issue is litigated before discovery or motion practice occurs with regard to any other aspect of the case, or transforming the motion to dismiss into a partial summary judgment proceeding targeted at that one key issue, or another tactical move, plan fiduciaries and their lawyers should affirmatively and constantly pursue these types of opportunities to reduce the scale of the litigation to solely the outcome determinative issues that they have identified, before the case is ever allowed to expand into broad discovery and litigation of the remainder of the case.

A perfect example of this crossed my desk last week in two different pieces of reporting on the same case. Both Bloomberg News and Kantor & Kantor have reported on the federal district court in Maryland’s decision to certify for interlocutory appeal the potentially outcome determinative issue in an ERISA class action of whether the putative plaintiffs had standing in light of the Supreme Court’s decision in Thole, after denying defendant’s motion to dismiss. The interlocutory appeal, if resolved in favor of the defense, may end the case at that point, without the need for discovery, summary judgment practice and trial to occur before the case is resolved on the merits. This is exactly the type of strategy by defendants, and proactive management of ERISA class action litigation by the bench, that I am talking about when I say that defense lawyers and judges should look for opportunities to resolve the outcome determinative but disputed issues in ERISA class actions early, rather than only after full discovery and comprehensive summary judgment practice. This is exactly one way to do it – to send the open legal issue that could resolve the entire action up for appellate review, instead of having it reviewed only after the entire case has been litigated.

There is no more overused word in the English language these days than disruption – in fact, whenever I hear it, I often think of the line from The Princess Bride that “I do not think it means what you think it means.” But the Supreme Court has literally invited the defense bar to pursue approaches to more efficiently litigate class action ERISA cases. It is an open invitation to lawyers to disrupt the way these types of cases have been litigated for decades, and lawyers for plan sponsors and fiduciaries should think constantly about how best to do so. The interlocutory appeal approach taken by the Court in Maryland is exactly one way to do it.