It’s the first Friday of the Year of the Horse, making it time for the first Five Favorites for Friday post of the year. As a reminder, every Friday, I do an entry in this series, each of which covers five topics, posts, articles, podcasts or videos that caught my attention over the preceding week but which I didn’t have time to post about in any depth on either this blog or LinkedIn. For those of you who may just be joining this series with the start of the New Year, you can find the first entry, and more information about the series, here.

A tremendous amount of interesting information crossed my desk this past week, but I narrowed what I wanted to talk about today down to the following five. So let’s get to it.

  1. They say that a fish doesn’t know it lives in water, meaning that we often don’t recognize the details or unusual aspects of the environments that are native to us. I thought of this when I read this article about the growing scope, use of and industry capacity for captive insurance. Probably because the Harvard medical institutions used a captive insurer structure when I started out and I did coverage and bad faith work for their excess insurers, I spent large amounts of my time in the first decade or so of my career working on captive insurance issues. It even involved working with the captives, the insured entities, reinsurers and others to resolve what we would now call nuclear verdicts against the insured entities, as well as being the junior associate on some fascinating coverage and bad faith disputes related to the actions of captives. Like the fish in water, captive insurance was just the environment I was in, and I thought it was a commonplace structure across the industry. It literally wasn’t until I read this article on its expanding use in the industry that it occurred to me that captive insurance is actually a little bit of an unusual beast within the industry as a whole.
  2. Nevin Adams wrote a great end of the year review of ERISA and retirement plan developments in 2025. It’s the kind of article I would have loved to have written, but that a practicing ERISA lawyer just could not possibly find the time to write at the end of the year, given plan amendment and other end of the year deadlines. I agree with Nevin’s conclusions and view, though, that for a year in which there was no significant statutory activity, it was a ridiculously challenging year for retirement plans from an operational and execution perspective.
  3. I am going to say out loud what most clients and potential clients or target audiences already know – most law firm newsletters and similar content are useless pablum. A few are really good and I read them. What makes them different? They either tell me in depth how to solve a particular knotty problem in my field or they use hard won expertise to provide some guidance about the near term future. In the latter category, I like this Haynes Boone newsletter’s article addressing the halting progress towards developing a consensus on how policy language should be read in regards to cyber claims. History is littered with decades of coverage litigation caused by the uncertain fit of particular policy language to widespread risks, such as pollution, and whether that will occur as well with cyber losses in the future is a key issue to study and plan for.
  4. I have written numerous posts and articles cautioning plan sponsors, fiduciaries and their lawyers about rushing head first into adding alternative investments to the 401(k) plans they oversee.  This particular post here is the keystone of my thinking on this issue, and I have written numerous other articles, blog posts and LinkedIn posts to the same effect or on narrower aspects of this issue.  This series of podcasts points out a broader point as to why plan fiduciaries and their counsel should play it safe and stay on the green on this issue – there is just way too much uncertainty on way too many issues concerning the economy for it to make sense for plan sponsors or fiduciaries to play hero ball or to get ahead of their skis right now on any issues where they don’t have to do so right now.  And adding alternative investments to 401(k) plans is one of those issues.
  5. I have written a great deal on the two faces of ESOPs.  When done – and run – in good faith, they are the embodiment of the best of capitalism, a win-win for both employers and employees. But their design and operation are open to manipulation and, with it, litigation, to the detriment initially of the employees and eventually, through the costs and potential liabilities of litigation, employers and company founders.  This write up by Kantor and Kantor of a case – Botterio – alleging misconduct in operating a plan illustrates my point.