Many, but probably not all of you, know the story of Alex Smith, the San Francisco 49ers quarterback. Long derided in the early part of his career, he came into his own over the past two seasons, succeeding especially well this past season, according to mathematical standards widely accepted among the football loving public as
A Belated Discovery and a New Blog to Recommend: ERISA Pundit
I am, for a change, flabbergasted and struck dumb: most people who know me will tell you I am seldom either. Luck, though, just landed me on ERISA Pundit, Warren von Schleicher’s well-written and insightful blog. Warren’s writing reminds me of a dirty, not really secret, secret about lawyers, especially litigators, which is that all
Going the Way of the Horse and Buggy: Comments on the Future, or Lack Thereof, of Pensions
These are two oddly complimentary stories, that tie closely to topics I have discussed regularly on this blog, including, among others, the difficulty faced by smaller shops of running a pension or other benefit plan, and the fact that no one at all wants to run a pension anymore. The first story is about a
They Are Called Prohibited for a Reason
We – meaning lawyers who do civil side work involving ERISA plans – mostly think about the rules against prohibited transactions from two perspectives. The first concerns whether clients can structure certain transactions or engage in specific plan actions without running afoul of the prohibited transaction rules. The second arises in litigation, where we either
Don’t Look Back, Something Might Be Gaining On You: Whether a Plan Administrator Can Raise New Bases For Denying a Claim Beyond Those Raised in the Initial Denial of Benefits
What do these two stories have in common, the first about a claims administrator not being allowed to change the basis for a denial of benefits during the internal appeal and the second about an administrator not being allowed to deny benefits based on factual investigation during litigation? They both highlight the importance, for the
Using the Economic Loss Doctrine to Defend Company Officers
One of the interesting aspects of litigating ERISA cases is the extent to which, for me anyway, it is part and parcel of a broader practice of representing directors and officers in litigation. From top hat agreements they have entered into, to being targeted in breach of fiduciary duty cases for decisions they participated in related
Empirical Proof of What I Always Thought (And Said): The Benefits of Litigation over Arbitration
This is great. I have lost count of how many times I have explained my view that arbitration is not, by definition, preferable to litigation for resolving disputes, and that instead, in each and every given case, a party should think carefully about which dispute resolution forum is preferable. I have written and spoken on
Back to the Future on a US Airways Flight: Notes on Oral Argument in McCutchen
I don’t know how many of you have had a chance to read, or have any interest in reading, the transcript of the argument yesterday in McCutchen, but its actually fairly entertaining. For one thing, it is clear that everyone – litigants, the justices, you name it – are a little flummoxed by the
Cut the Deficit, Not 401(k)s
I was somewhat stunned – and frankly, to some extent angered – by this article yesterday in Slate, in which a business school professor asserts that, if research from Holland does not support the idea that tax breaks motivate savings, one should do away with the 401(k). This completely misses the point that, in a
McCutchen at the Supreme Court
US Airways, Inc. v. McCutchen is scheduled to be argued at the Supreme Court tomorrow, the next round in the on-going investigation by the Court of the scope of equitable relief available under ERISA. In this instance, the Court must consider the extent to which traditional limitations on equitable remedies are incorporated into ERISA.