So, where do we even begin with Fifth Third Bancorp v. Dudenhoeffer, which is, first, a fascinating decision and, second, one that has already inspired countless stories in both the legal and financial media? I thought I would begin by passing along some of the better commentary I have come across in the wake
ERISA, the Wisdom of Crowds and the First Hundred Names in the Phonebook
The wisdom of the crowd, or something else maybe? Susan Mangiero has a wonderful post on something that I probably should have known existed, but did not: an internet site where lawyers and other voyeurs vote on the outcome of pending Supreme Court cases. As Susan notes, the site includes a prediction on a
How to Trigger Insurance Coverage for an ERISA Claim
Well, how can I not comment on this, given the focus of both this blog and my practice? The Second Circuit was just presented with the question of whether an insurer has to provide a defense to a company and its officer, under the employee benefits liability portion of a policy, for an ERISA claim
Copyright Infringement and Architects (Software and Otherwise)
Riddle me this, Riddler: what does the design of a center entrance colonial house have to do with complex computer software?
A lot, it turns out, if you are interested in the borders that should attach to IP rights so as to best balance the need to encourage the creation of new products against
What Happens to Company Owners Who Get Overaggressive When Selling Out to an ESOP?
Just what is it about Chicago and ESOPs? Is it something in the water, redolent of gangsters and Al Capone? First, there was the Sam Zell/Tribune ESOP transaction, which, as I wrote before, was such a complex transaction that, building it around the ownership interests of the employees could not help but raise
What Does the Moench Presumption Look Like in the Light of the Real World?
One recurring problem in ERISA litigation is the tendency of courts to address and decide novel and complex issues on motions to dismiss, rather than after allowing full development of the factual record. New and original breach of fiduciary duty theories can look entirely different when considered by courts on the full record than they
Me, Lawyers Weekly and Patent Infringement Litigation
I am quoted extensively in this week’s Massachusetts Lawyers Weekly in the article “Businesses increasingly assert patents for strategic reasons,” which discusses companies bringing patent infringement claims against their competitors as a business tactic, and whether recent Supreme Court decisions making it theoretically easier to obtain an award of attorney’s fees will reduce the
More on the Golf Course RFP
Susan Mangiero, one of my favorite experts on financial deals and transactions, was kind enough to post on my presentation to the Boston Regional Office of the Department of Labor, where I spoke on common mistakes by plan sponsors. I spoke as part of a day long training program that Susan presented at as
Why Commonality is Relatively Easy to Prove in ERISA Class Actions
One should never underestimate the fundamental role that procedural and related tactical issues play in a case, and how they impact the very question of whether a plaintiff will ever be able to have a judge or jury rule on the merits of a case. Procedural barriers to prosecuting particular claims can be the end
Clamping Down on Patent Litigation as a Business Tactic Among Competitors
In the years leading up to the Wall Street collapse of 2008, I spent a fair amount of my time defending smaller tech and similar companies against intellectual property suits, including patent suits and preliminary injunction proceedings, often involving infringement claims that were, in my book, specious at best. Interestingly to me at the time