Preemption is a tough defense to get around, particularly in the First Circuit, where it is taken quite seriously and numerous decisions expressly declare particular state law causes of action to be preempted by ERISA. One clever response to this problem, at least when the facts will allow the argument, is to try to sidestep
Claims Adjusters: Long Hours but No Overtime
Well, for those of you readers who work inside of the industry, instead of for it or agin’ it, I guess we can put this in the category of news you can use (I guess good news if you are in management, bad news if you aren’t). The Ninth Circuit has concluded, reversing the District
Insurance Coverage Trial Exhibits
I added a new category today, Insurance Coverage Trials, as a place to collect useful tips, ideas and articles on trying insurance coverage cases that might be useful to readers of this blog who either try such cases or hire (and thereafter manage) lawyers who try such cases. What prompted this idea was a long
401(k) Plans and Pensions: Are They Enough?
I wanted to pass along today a fascinating law review article by one of the better ERISA scholars, Susan Stabile, on the retirement benefit system. In the article, “Is It Time to Admit the Failure of an Employer-Based Pension System,” to be published in the Lewis & Clark Law Review, Professor Stabile raises
MassMutual Arbitration Award
Here is the story of the $50 million payday that the fired chief executive of MassMutual Financial Group has been awarded in an arbitration. There are a lot of lessons here, and maybe the first one is that in some instances it may just be better to be wrongly fired than rightly employed. Of course
Logrolling 103
I should probably take a page from my elders at this blogging business, and create a blogroll on the links section on my blog listing the blogs I read regularly and that are good resources on issues addressed by this blog. For now though, I continue with my Logrolling entries to record that information. And
Contract Law and Insurance Coverage
Although we treat insurance coverage cases as contract disputes, I am not altogether convinced that the law of contracts really is the animating principle behind insurance coverage decisions. Certainly, at the very least, one can’t take a gander at a standard contracts hornbook (that is lawyer talk for a book that provides a readers digest
Patent Infringement, Copyright Infringement, and the Costs of Doing Business
In addition to litigating ERISA and insurance coverage cases, I have maintained a pretty active intellectual property litigation practice for a number of years. Routinely, when I meet with business people to discuss intellectual property problems, the subject of the expense of protecting intellectual property rights and how to control legal costs in doing so
More Pros and Cons of Arbitration
I have written before about my view that arbitration is not necessarily preferable to litigation, and that, in my experience, litigation can be the better forum for resolving disputes. I know this runs contrary to the usual platitudinous bon mots frequently tossed off about the wonders of arbitration, but hard earned experience tends to discredit
On Suing Insurance Companies
I spoke awhile back on the phenomenon of lawyers suing insurance companies just because that is where the money is. As a long time coverage and bad faith litigator, it has always been clear to me that there is at least some of that going on (which is not to suggest that no such