Do they still teach administrative law in law school? I don’t know if they need to bother anymore, because the Ninth Circuit’s exposition of Chevron deference in Tibble, when discussing the 404(c) defense, pretty much sums up everything a practicing litigator needs to know about the subject. It is a first class explanation of
Lessons on Intellectual Property Litigation From the Baltimore Ravens Defense
This is a great story on long running copyright litigation between the Baltimore Ravens football club and a security guard and doodler, over the rights to the Ravens’ emblem. The court bifurcated the case, with liability being tried first. The jury in the liability portion of the case found infringement, but the next jury, in
And the Ninth Circuit Swings Away at Tibble v. Edison . . .
Well, the United States Court of Appeals for the Ninth Circuit has affirmed the District Court’s well-crafted opinion in Tibble v. Edison. I discussed the District Court’s opinion in detail in my article on excessive fee claims, Retreat From the High Water Mark. From a precedential perspective, as well as from the point
Directors and Officers Liability Meets the Accidental Fiduciary
I joked in a tweet the other day that I could be busy for the rest of my professional career if I could just represent all the company officers and officials out there who don’t know they are ERISA fiduciaries until after they are sued for breach of fiduciary duty. The joke was in response
Preemption of Misrepresentation Claims
Longtime readers of this blog know that I don’t comment on my own on-going cases, but that I will pass along interesting decisions from my cases, without much comment or analysis, when I think they provide some value to readers. In that vein, attached is a recent 22 page opinion in favor of one of
Pensions as a Moral Issue, and the Role ERISA Can Play
When you approach the Moakley federal courthouse in Boston from the direction of Boston proper, your eye is invariably drawn to a series of quotes engraved on the courthouse wall. I have walked to that courthouse an untold number of times, and still, each time, I read the quotes as I go by as though
Valuation and Appraisal Risks for ESOP Fiduciaries
Chris Rylands and Lisa Van Fleet‘s recent, very pithy summary of the Department of Labor’s enforcement initiatives with regard to ESOPs has been rattling around in my head for a couple of weeks now. The more I think about it, the more impressed I am by their ability to set out, in a couple
Despite Kirkendall, Never Assume You Don’t Have to File an Administrative Appeal
This is interesting, right on the heels of all the discussion about the Second Circuit, in Kirkendall, not requiring a participant to exhaust administrative remedies by appealing a benefit determination before filing suit. As I noted in my discussion the other day about Kirkendall, the Court did not require an appeal because the
Some Thoughts on Kirkendall v. Halliburton
I have passed along on Twitter (https://twitter.com/SDRosenbergEsq) some of the better reviews that have crossed my desk of the Second Circuit’s recent decision in Kirkendall v. Halliburton, Inc., in which the Court held that a plan participant did not have to exhaust administrative remedies in an ERISA plan where the plan document itself
Is the Risk of Relapse a Disabling Condition for Purposes of an LTD Policy?
There are limits, though vast, to the degree to which words, even in the hands of the most careful draftsperson, can accurately capture concepts, particularly when those concepts concern future events and possibilities. There are likewise limits, though vast, to the degree to which people can anticipate future events. I have written more than once