This is a great article by Chris Carosa in Forbes, on the history of developing business by inventing a new subcategory in an existing field and then filling it. Although the article is in Forbes, Chris is probably better known as the force behind the retirement industry publication Fiduciary News, which to my recollection,
401(k) Plans
Is It a Breach of Fiduciary Duty to Include Target Date Funds In 401(k) Plans?
Not long after I first started writing this blog, the Seventh Circuit began trying to preemptively squelch excessive fee litigation by, at heart, insisting that the invisible hand of the market would never have allowed the type of overcharging of fees claimed by the plaintiffs in those cases and that plan fiduciaries therefore could not…
An Interesting Commentary on the State of the Fiduciary Liability Insurance Market
I didn’t want July to pass without commenting on The Fid Guru’s excellent blog post reviewing excessive fee litigation over the first half of the year and the corresponding state of the fiduciary liability insurance market. I particularly appreciated the extensive discussion of the history of the market for fiduciary liability coverage, as it…
What Would Shakespeare Say About Offering Bitcoin in 401(k) Plans?
Somehow, Shakespeare seems to have anticipated crypto; the ongoing kerfuffle over offering crypto in the investment menus of 401(k) plans is seeming more and more to be simply “sound and fury, signifying nothing.” For those of you who may have missed it, in the past several weeks, just to hit the highlights, Fidelity…
The Problem of Access to Retirement Plans in Small Companies
This is a great article on the question of why smaller businesses do not offer retirement plans. I recommend reading it, and won’t simply restate its findings here, but instead want to add two thoughts.
First, there are many important issues in the world when it comes to retirement security for employees, but the lack…
Retaliation, Section 510 and the Timing of Terminations
Section 510 of ERISA makes it illegal to take any job action for the purpose of interfering with an employment benefit that would otherwise have been due to the employee. The classic formulation of such a claim is terminating an employee right before a pension would have vested, simply to avoid owing the benefit; some…
Notes (and a Prediction) on the Supreme Court Argument on Church Plans
I have used this anecdote before, so you can jump ahead if you have either read something where I have written it before or heard a talk of mine where I have said it, but if you haven’t, I have always thought it is a good lead in to any discussion of the church plan litigation. A long time client of mine was hired by his employer as an in-house staff lawyer in 1975, and was told that there is a new law, ERISA, and he is in charge of it. He once told me that, in the early years of ERISA, they used to operate by gut, analogy, metaphor and instinct in deciding what some of the terms meant and how they should be applied, given that much of the statute and its structure was, one, novel and, two, had not yet been interpreted by the courts. In those early years, he often had to decide whether a particular plan should be viewed as a governmental plan – which, much like church plans, are exempt from ERISA – and the test they applied was this: if it looked like it was run by a governmental type entity, quacked like it was run by one, and waddled like it was run by one, than it was a governmental plan, as far as he and his team were concerned.
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CapTrust and Target Date Funds
So, Kevin O’Keefe of LexBlog has long preached that the key to effective blogging and other social media professional marketing is to provide actual information that people can use, rather than putting out, under the guise of blogging, marketing materials. In my own blogging and in my own practice, I routinely prefer to, and do in fact chose to, work with legal and other professionals who follow this same mantra: they simply think the way I do, and the knowledge they share is useful to both me and my clients.
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I Predict the Future in Planadvisor
I, and a cast of other ERISA Nostradamus[es], claim to foretell the future of ERISA litigation – by gazing back at the past year – in this new article in Planadvisor, titled “Expect More Varied ERISA Litigation in 2017.” I am quoted in the article on the trend line of stock drop litigation, but also…
A Tale of Two Cases, or Why Bad Facts Make Bad (Stock Drop) Law
I will be sharing a dais with Joe Barton later this month at the 13th National Forum on ERISA Litigation, where we are both part of a panel that is discussing equitable remedies under ERISA. Joe won an interesting case before the Second Circuit recently, Severstal Wheeling Retirement Committee v WPN Corporation, in which…