I just read that commercial arbitration isn’t a panacea. Hmm, where have I seen that before? Oh, I know, I wrote it here, and here, and here. Anyway, if you want to read it all again, how arbitration poses special risks and problems that may well outweigh its benefits, here’s the latest
KSR, Patent Infringement and Obviousness
I don’t know how many people with an interest in ERISA litigation share my interest as well in patent and other intellectual property litigation, although I know from experience that I am not the only lawyer who practices in both areas. Either way, for anyone who has been following the issue of the Supreme Court’s
Summary Plan Descriptions and Discovery in ERISA Cases: the Latest from the First Circuit
The First Circuit issued an opinion in the case of Morales-Alejandro v. Medical Card System on Wednesday. The case, which involved a challenge to a denial of long term disability benefits, is noteworthy for two aspects. The first is that the case reaffirms this circuit’s reluctance to allow discovery beyond production of the administrative record
Documenting the Death of Pensions
I have written before about the question of whether we are creating a more litigious environment by switching employees from defined benefit plans to defined contribution plans, and we all generally know that companies are overwhelmingly shifting employees from the former to the latter. Those of you in the retirement industry certainly already are aware
Insurance Bad Faith, Expert Witnesses and Privileged Communications
I received a pitch for an interesting seminar on the interrelationship of the federal rules governing expert discovery, the retention of experts in litigation, and the work product doctrine. The issue addressed by the seminar has to do with the fact that expert discovery under the federal rules at this point is very broad, and
Pension Performance, 401(k) Plans and Breach of Fiduciary Duty Litigation
This is an interesting paper, that comes to us via Workplace Prof, and which provokes further thought on the issue of the litigation boom involving 401(k) plans. The paper finds that pension plans outperform mutual funds, and attributes that differential to costs buried within mutual funds, as well as to the size of
Blogging on the Pension Protection Act
I have been meaning to mention this for some time now, but other things always come up. So before the week takes me on to other issues that I want to post about, I thought I would take a moment and recommend to you Suzanne Wynn’s Pension Protection Act blog, which I have been reading
Electronic Discovery and the Federal Rules
If I am a little obsessed with the topic of electronic discovery, I apologize, although I can explain it. Computer storage and manipulation of information is now the standard operating procedure for insurance companies, financial companies, third party administrators, and others involved with ERISA plans and insurance policies. As a result, the unique discovery issues
Behavioral Economics and a Disincentive to Retire
We have talked a fair amount on this blog about “choice architecture” and how the new structure of the retirement system, with its move from pensions to 401(k) plans, may be affecting behavior in unintended ways, such as by encouraging litigation. At his blog, the RiskProf has an excellent post on another negative
Risk Transfer, Major League Baseball and Insurance
It’s a truism that insurance greases the skids for the entire economy; as a risk sharing mechanism, it allows businesses and individuals to move forward knowing they won’t bear the entire cost if something goes wrong. David Rossmiller’s ongoing coverage at his blog of the response of coastal states to a decrease in available homeowners