Well, I guess this wouldn’t be much of an ERISA blog if I didn’t put up a post about the Supreme Court’s decision in Conkright v. Frommert, on the question of whether an administrator continues to be entitled to deferential review when it has already had one interpretation of the challenged plan terms rejected
When Does a Flaw in an Administrative Appeal Render an Administrator’s Denial of Benefits Arbitrary and Capricious?
There have been a series of interesting ERISA decisions over the past several weeks out of the United States District Court for Massachusetts, whose Boston courthouse I can see through my office window as I type this post. The decisions have stacked up on my desk a little bit, like a leaning tower of paper.
An Employer’s Guide to Health Reform
I expect to be litigating, down the road, issues, complications and conundrums created by health care reform. Let’s be honest – its impossible to imagine any large structural undertaking not generating problems, including unforeseen ones, that will have to be resolved by the courts. For now, though, the issue is more one of planning for
Wednesday Potpourri
Over the past week or so, several interesting items have crossed my desk, none of which have appeared while I have had time to do them justice with a full blown post. We will do three for Wednesday today – even though there is no alliteration at all to that title, as opposed to five
Harris, Hecker, Excessive Fees and Marketplace Discipline
Yesterday, the Supreme Court effectively rejected the idea that mutual fund fees, in the non-ERISA context, are not actionable if consistent with the market as a whole, in response to a Seventh Circuit decision finding that a fund did not pay excessive fees to its investment advisor in light of marketplace discipline (I am oversimplifying
What Daubert Can Teach Us About Electronic Discovery Problems
I have written before, probably on more than one occasion, about the fundamental philosophical problem underlying electronic discovery, which is that lawyers and courts continue to view it through the traditional rubric of discovery, one formed in the world of paper documents, interrogatory answers, and deposition testimony. As I have discussed in the past, battles
Attorneys as Fiduciaries
Are you, or have you ever been, a fiduciary? Sometimes I am tempted to open a deposition with exactly that question, phrased as a derivation of the famous McCarthy era line. While I doubt I ever would do it, it’s the million dollar question in most breach of fiduciary duty litigation under ERISA. It is
Fees, Me and BrightScope
This is fun – I am quoted in a nice article on BrightScope, which you can find here, reprinted on The Intelligent 401k Advisor blog (you can find the original article on Workforce.com, but you will have to register to get access to it).
When Does Little Recovery Justify a Large Fee Award?
This is a little item about a large award of attorney’s fees in an ERISA case to a prevailing plaintiff in a case involving only several hundred dollars in actual recovered damages, but it caught my eye for a couple of reasons. Factually, as the story goes, the court awarded some $45,000 in attorney’s fees
The Fiduciary Status of Investment Advisors
I often explain to people that as a litigator, I am typically presented with a knotty, tied up problem, consisting of all the decisions and plan choices that have been made in the past that eventually resulted in litigation, and that I then have to unravel the knot into its constituent pieces, which can then