There’s a famous saying that war is politics continued by other means, and I have paraphrased it in the past to point out that patent infringement litigation is frequently simply business competition continued by other means. I think it is similarly fair to say that the lawsuit seeking to overturn the Department of Labor’s new
A Busy ERISA Week in the Ninth Circuit: Moyle v. Liberty Mutual and Rich v. Shrader
Last week, I spoke on a panel with, among others, Trucker Huss’ Joe Faucher, who discussed some aspects of Ninth Circuit ERISA jurisprudence with a mostly East Coast-centric audience. A week later, that circuit has turned out two of the more interesting and potentially significant appellate decisions in ERISA that any court has produced
The Cost/Benefit Analysis of Self-Funding Employee Health Benefits
I enjoyed this article from CFO on whether smaller employers should switch over to self-funded health plans, to take advantage of potential cost savings in comparison to insured plans, and to obtain comparatively favorable treatment under the ACA. I would throw in another point that favors self-funding a plan, which is that ERISA preemption provides
Excessive Fee Litigation Against Small Plans – Damberg v. LaMettry’s Collision
My partner, Marcia Wagner, is quoted in this article about a somewhat stunning development, the filing of a class action excessive fee case against a relatively small plan, with around $9 million in assets. I have been asked for some time, by media and by audience members at speaking engagements, if and when we will
The Centre Barely Holds: ERISA Preemption After Gobeille v. Liberty Mutual Insurance Company
When I was a very young lawyer practicing policyholder-side insurance coverage law, prominent coverage lawyer Jerry Oshinsky, still relatively fresh off inventing the triple-trigger, described to me the concept of “partial equitable subrogation” in the context of insurance law as “black magic,” in that it was basically a standard-less concept that courts applied
Halo v. Yale, the Second Circuit, Hamilton and Sideways Challenges to the Scope of Discretionary Review
In the musical Hamilton, everyone from Aaron Burr to Hamilton’s wife, Eliza, asks why Hamilton always “writes like he’s running out of time,” and the lyrics assign various pop psychology rationales to his urgency. This morning, though, after listening to the soundtrack again, I realized the real reason – he’s a lawyer! He’s always on
A Brief but Reasonably Thorough Intro to the New Fiduciary Standard Being Issued Today
Crazy busy today, but – like someone on the highway slowing down to look at a wreck in the opposite lane even though it is an unnecessary distraction – I of course can’t help but read all the commentary on the new fiduciary rule due out of the DOL today. So for fun – and
12th National Forum on ERISA Litigation – View From the Bench
As many of you know, I have spoken at ACI’s ERISA Litigation Conferences over the years on topics as diverse as legal ethics in the context of ERISA litigation, ERISA remedies, discovery issues and fiduciary governance, among other topics. I have always been a fan, though, of the judicial panels at the conferences, where –
Gobeille v. Liberty Mutual Insurance Company: The Interesting Things Are in the Concurrences and the Dissent
So, anyone besides me remember that great scene in 48 Hours where Luther goes to pick up a car at a parking garage where it was left years before, and responds to the cashier’s comment about how long its been by shouting “I’ve been busy!”? I always think of that when I get so busy
Thoughts on the World’s Simplest ERISA Decision: Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan
Interestingly enough, the Supreme Court’s decision last week in Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan is about the least complicated ERISA decision any court has issued in years. You know how I know that? The number of posts, tweets and articles published within days by law firms and