Hmm. I seem – despite my best intentions – to have ended up with an all ERISA post this week. I promise you there were plenty of very interesting stories and posts about insurance issues in my in-box this week, enough to literally do a second “Five Favorites for Friday” post this week. But I’ve got multiple filings due today, and my email in-box is overflowing, so I am going to take a pass on writing two “Five Favorites for Friday” posts this week.

I will try to make this imbalance up to the insurance crowd next week.

  1. Fifteen years ago, the Supreme Court at least appeared to expand the scope of equitable remedies that plan participants could seek under ERISA, and in so doing taught most ERISA lawyers a new word (well, really an old word in the legal context but one no one had uttered in the modern era), which was “surcharge.” As I joked back then, the moment the Supreme Court used the word to describe a type of equitable remedy, every ERISA lawyer in the country raced to their Black’s Law Dictionary to find out what it meant (this was so long ago, kids, that the only internet access was dial up, so no one was going to wait for AOL to load to find out the answer). Here’s a great write up of the fact that, even after all these years, courts still aren’t entirely sure what to make of the Supreme Court’s action at that time or of the doctrine of surcharge, and also of the fact that the Fifth Circuit appears to be about to reopen that Pandora’s box.
  2. I like some of the Department of Labor’s recent initiatives, For instance, as I have written elsewhere, I think the new field guidance on investigations of sponsors, service providers and fiduciaries is both excellent and long overdue. However, as I have written elsewhere, I am not convinced that the proposed regulation relating to alternative investments in 401(k) plans provides all that much benefit to plan sponsors and fiduciaries. Here’s an interesting article looking at the regulation from the perspective of plan participants, and suggesting that it needs to provide more pass through transparency to plan participants.
  3. There is a lot of discussion of a litigation crisis relating to 401(k) plans. As a longtime courtroom lawyer, and one who is none too happy about the vanishing status of the jury trial, I have long thought that the real answer to this crisis is for plan sponsors and their insurers to try more ERISA class actions to verdict. Nothing will scare off the filing of frivolous cases, leaving only the arguably meritorious ones, quicker than requiring plaintiffs and their lawyers to incur the expense of a full blown litigation, followed by a trial, in pursuit of a payday. Plaintiffs’ class action lawyers are a rational bunch, and they aren’t going down that road without a sound legal theory and solid facts to back it up, if they know they are eventually going to have to prove their case at trial. I was thinking about this because here’s an interesting story about a case being tried to determine breach of fiduciary duty liability for forfeitures. One thing that may make it more interesting, and result in a very interesting ruling, is that the judge hearing the case has something of a specialty in prominent 401(k) cases.
  4. Class action litigation over retirement plans is so last year. Well, not really – just see the prior item in this post. But the brave new world for everyone from regulators to plan sponsors to class action lawyers is health care, a five trillion dollar market with pricing and (sometimes too cozy) relationships that are now under regulatory and litigation pressure. If you haven’t been paying attention, this is the best high-level overview of the landscape I have seen in a while.
  5. As both the media reporting and my own practice shows, there are serious job losses currently impacting the executive class. The question of AI related job losses across all classes of employees is a major discussion point on all fronts at this time as well. So it’s nice to read a good discussion focused on hiring, not firing, displaced executives and employees, such as Brian Gilmore‘s latest post in his series on COBRA. This time, he discusses reimbursing new hires for the cost of their COBRA coverage from the jobs they left. You can find the post here (you can find the first two posts in his series on COBRA coverage referenced in my last two Five Favorites for Friday posts).