There’s a lot of good content out there these days on the subjects that I care enough to write about here or on LinkedIn: AI and the practice of law, AI and insurance, ERISA litigation and exposures, insurance industry developments, and a number of other topics. I could have easily identified and included way more than five articles, posts, podcasts and the like for inclusion in this week’s Five Favorites for Friday, but as I have said before, both my workload and my preference for alliteration require that I continue to limit the list to five. And so without any more ado, here’s this week’s Five Favorites.

1. Wondering what all the teeth gnashing is about with regard to the recent filings of class actions against plan sponsors and brokers concerning voluntary benefits that provide employees with additional coverage that fills in the gaps left by group health insurance? Nevin Adams tells you what those cases are all about in this article. My prediction? By the time these lawsuits and their inevitable offspring are done, either health insurance is no longer a plump and enticing target for the ERISA class action bar or else within ten years, just as occurred in response to 401(k) plan litigation, the structure of this entire area of benefits is fundamentally different than it is right now. Which one it will be tests my powers of prognostication, and here is why. The firm that filed these class actions not only knows what it is doing, but also doesn’t tend to waste its powder. Having filed these suits, the lawyers undoubtedly have the facts and legal theories to back up their claims. On the other hand and pushing back against this outcome is the skepticism we have been seeing for a while now by courts with regard to the latest theories and claims in ERISA class action litigation, which may continue in the future with the judicial response to these claims. If it does, I think you will see it in the handling by the courts of the safe harbor issues – but that’s a big topic all on its own, and too much to bite off here in a single paragraph addressing just one of the Five Favorites for this week. (If you are particularly interested in this precise point, though, I would love an excuse to discuss it in detail so feel free to reach out).
2. I have been thinking a lot about the possibility that, despite the AI hype that it will replace lawyers or eliminate law firms, AI is more likely to do something still more radical and, for practicing lawyers, of potentially much more value: namely, free us from the mechanical, rote part of practice to instead act like the counselors, advisors, courtroom advocates, and the like that, on our best days, we are and aspire to be. I had been a little reluctant to actually sit down and put pen to paper on the topic, since in many ways this is what patent lawyer Robert Plotkin suggested in an article months ago, back when everyone was still noodling over the “first thing we do, let’s kill all the lawyers” subtext around AI deployment. Now, though, I am even more reluctant to write on the subject, as Eric Dodson Greenberg, the executive vice president, general counsel, and corporate secretary of Cox Media Group, just said the same thing, in this article. I highly recommend it and, I have to be honest, am not sure I would have said it any better if I had in fact sat down to write on this subject.
3. I really like markets, of all types. I even wrote an article on LinkedIn comparing private equity investments in 401(k) plans to my local farmstand and market. But, as a practicing lawyer, the kind of markets I am really interested in are business and financial markets of all kinds and the impact on clients and lawyers of changes in them. For instance, I have written many times on the fact that deteriorating labor markets inevitably lead to an increase in disability, pension and other ERISA litigation. But one of the most fascinating markets to me is the one for insurance coverage, or more accurately, the multiple markets for different types of insurance, which can vary depending on the particular form of coverage for which one is in the market (pun intended – sorry about that). I have seen hard markets, soft markets and everything in between with regard to different types of insurance over the years I have been a coverage lawyer, and the differing factors that affect the type of market at any given time are complex and fascinating. You can see all of that in play here, in this blog post, on the current nature of the insurance market for cyber coverages. I confess the article is a little dated by the standards of the Five Favorites post, but it’s new to me and does a great job of explaining how insurance markets operate.
4. For those of you keeping track at home, the next move in the effort to add private equity investments into 401(k) plans belongs to the Department of Labor and the instructions to it to issue regulatory guidance on the issue. Here’s the latest development on that, which suggests the regulatory process for its issuance is moving along apace. Color me basically nonplussed no matter what it says (hate to prejudge, but . . .) Why is that? Because I don’t think it is possible, after Loper and years of litigation over various ERISA safe harbors, for the DOL to conclusively regulate away the potential liability and class action litigation risks for plan sponsors and fiduciaries buried within the effort to add these investments to plans.
5. A thousand times this. Legendary investor Charlie Munger once said “show me the incentives and I will show you the behavior.” Retired federal court judge Mark Bennett argues very persuasively in this LinkedIn post that the Federal Rules of Civil Procedure have created a perverse incentive structure that has led to unintended results that are harming the practice of law, courts and clients. I could write a law review article on this subject and I cannot possibly address all the subtleties of this issue here, in one paragraph. But there is no quarreling with his point that the rules and their implementation are at the heart of a system that overemphasizes unnecessary discovery and with it increased costs to clients. I suspect I speak for many experienced courtroom advocates when I say just give me all the documents, a way to make sure I was given everything relevant, an accurate itemization of damages, a legitimate list of witnesses and their subjects of knowledge, and a finite and preset number of depositions, then let’s set a trial date. (Okay, to be fair, maybe I would still like the opportunity to write and file a summary judgment brief before going to trial, in cases that actually might be served by a summary judgment motion).