Last week’s Five Favorites for Friday post ran a little heavy, with a focus on five different issues and articles concerning the Department of Labor’s new proposed regulation intended to somehow reduce class action litigation and increase participants’ exposure to alternative investments all at the same time. That seems like a trick worthy of Penn & Teller, or at least of a lawyer version of the duo.

So this week we are going both a little lighter and a little more eclectic, all at the same time, by discussing a wider variety of articles and topics, including the corporate overlord in the Alien movies.

1. The other week I discussed an article totaling up all of the class action filings in New England in 2025 and which suggested that the concern that there is an excessive boom in ERISA class action litigation might be overstated. Lo and behold, and naturally enough, now comes this Bloomberg Law article documenting that 2025 was so last year, and that there is a verifiable boom in ERISA class action filings in 2026. (Hat tip to my colleague Caroline Fiore for forwarding the article to me and pointing out this finding). What’s most interesting to me is the discussion in the article about the fact that the filings, and what they allege, seem to ebb and flow depending on what areas of ERISA class action claims are succeeding. One observer notes that class action lawyers go where the money is, so to speak, and there are thus more filings in the ERISA space than in others because class action lawyers have noted a higher degree of success in the ERISA area than they can find in other areas of class action litigation. Similarly, the article points out that class action filings related to forfeiture claims are down, presumably because those claims have not fared well in the early going. There’s a lot one could say about this, but for now I will limit myself to this point: if filings decline on losing theories and increase on theories that are successful, doesn’t that undercut the narrative – even if just a little bit – that the boom in ERISA class action filings is due to meritless claims being filed? And that instead the litigation system is working the way it’s supposed to, by allowing meritorious claims to proceed while winnowing out the poor ones?
2. Not that any of that much matters, because worrying about the ratio of meritorious ERISA class actions to frivolous ones is an artifact of the decade long boom in retirement plan litigation. As I have written many times before, we have now entered the era of class action litigation over health and welfare benefits, where the lack of transparency, high costs and conflicted decision making that plagued retirement plans years ago is only now coming under the bright light shined by the class action bar. This point is discussed nicely in this article. But what I really like about this article is its emphasis on the increased access to data in the AI age, and the fact this is likely to empower the plaintiffs’ class action bar when it comes to these types of cases. That’s just going to add to the perfect litigation storm that is headed directly at employers, plan fiduciaries and brokers when it comes to health plans.
3. As an armchair economist, I enjoyed this article in Planet Money comparing rapacious employers to the corporation in the Alien movies who convinced employees to face the murderous creature by invoking clawback provisions in their employment contracts. No, really – that’s what the article says happened! In that idea, though, is a representation of one of the great distinctions between employment law and ERISA law (which as any employment lawyer who has tried to litigate an ERISA case will tell you, aren’t actually the same thing), namely that while employment law may run towards being pro-employer in many circumstances, ERISA – particularly once you get away from disability plan litigation, where the standard of review is stacked against employees – gives a lot of tools to employees and their lawyers. Whether it’s the current power of the ERISA plaintiffs’ class action bar, the high standard for fiduciary conduct that is literally written into ERISA itself, anti-cut back rules that limit reduction in benefits, Section 510 – which makes retaliation against participants seeking benefits illegal – or a host of other rules and provisions, ERISA gives employees and their lawyers a lot of firepower. There’s no way that corporation in Alien could have forced the employees in to face the creature by targeting their retirement benefits – that wouldn’t have worked.
4. One could have predicted this. In last week’s Five Favorites for Friday post, I catalogued a series of complicated issues (and corresponding risks for plan sponsors) inherent in any decision to add alternative investments to 401(k) plans in response to a new Department of Labor initiative in this regard. Bloomberg Law reporter Brett Samuels took the temperature of plan sponsors and fiduciaries on the issue, and found that while financial industry types who are certain to profit from the initiative are very excited about the idea, plan sponsors and their lawyers aren’t so keen on it. Brett spells it out here. This is pretty smart of plan sponsors and their advisors. They face serious risk from this course of conduct and so deciding to be a later adopter, not an early one, of alts may be the safest course. At a minimum, by waiting, they will eventually end up with a better sense of what the litigation environment on this issue turns out to look like, before they ever expose themselves or their plans.
5. Wow. Just wow. I had multiple very deserving candidates for the number five spot in this week’s post, but they all got trumped (no politics intended, but I have decided to reclaim the use of that word, which is very useful when writing) by the amazing story in Crain’s Detroit Business of the ERISA class action brought against Blue Cross Blue Shield alleging that it profits from its own mistakes as the administrator of self-funded health plans. Now, I have both represented and sued TPAs, including of self-funded health plans, and I don’t think anyone expects they won’t make mistakes when administering complicated plans. But the allegations here are remarkable. Unfortunately, you cannot access the article itself if you are not a subscriber, but you can find an excellent synopsis (as well as a link to the article if you are a subscriber or want to become one) in this LinkedIn post.