I can’t even recall how many times I have written – on this blog and elsewhere – on what I call “defensive plan building,” which is the idea that plans should be designed, built out and operated with the risk of litigation and liability exposure carefully considered and planned for, with the goal of eliminating
Benefit Litigation
ACI’s 9th National Forum on ERISA Litigation
By Stephen Rosenberg on
The American Conference Institute (ACI) hosts a comprehensive ERISA litigation conference twice a year, in New York in October and in Chicago in April. Fall in Manhattan and spring in Chicago. What’s not to like?
Beyond that though, the conferences have always provided a detailed and in-depth look at the hottest current topics in ERISA…
How Do You Win an ERISA Estoppel Claim in the First Circuit?
By Stephen Rosenberg on
Posted in Benefit Litigation, Equitable Relief
I wanted to take advantage of the cold, dark, peaceful days of mid-January (do New Englanders still grow up reading Ethan Frome, with its perfect depiction of a classic, pre-global warming New England winter?) to talk briefly about an important First Circuit decision that slid somewhat under the radar when it was issued just…
What Are the Costs and Risks to Administrators When District Courts Remand Benefit Denials Back to Them?
By Stephen Rosenberg on
I have been writing a lot recently about big picture items, from Supreme Court cases over ERISA’s statute of limitations to the ability of plan sponsors to legally control litigation against them, and everything in between. It is worth remembering, however, that ERISA is a nuts and bolts statute that is litigated day in and…
Q: Where Can You Sue an ERISA Plan? A: Where the Plan Sponsor Says
By Stephen Rosenberg on
Posted in Benefit Litigation, ERISA Statutory Provisions
So the Sixth Circuit, in Smith v. Aegon, just ruled in favor of the enforceability of forum selection clauses in ERISA governed plans. Combined with the Supreme Court’s approval in Heimeshoff of contractual limitations in ERISA plans on the time period for filing suit, the approach of Smith basically hands control of the basic…
Administrative Exhaustion, Futility and the Last Refuge of the Scoundrel
By Stephen Rosenberg on
Posted in Benefit Litigation
When it comes to claims of futility as an explanation for failing to exhaust administrative remedies in pursuing benefits under an ERISA governed plan, I have long summed up my feelings with a pithy rephrasing of Samuel Johnson’s famous line about patriotism, which I have turned into the somewhat flippant comment that “futility is…
If an Appeal is Filed and Nobody Knows It, Is it an Appeal?
By Stephen Rosenberg on
Posted in Benefit Litigation, Long Term Disability Benefits
There are many variations on the old question that, if a tree falls in the woods and no one is there to hear it, did it really fall. I am sure, like me, you have heard many versions of that question that are not fit to be reprinted in a PG-13 rated blog.
But I…
The Fiduciary Exception to the Attorney-Client Privilege: What It Is and Why It Matters
One of the great advantages a Massachusetts ERISA litigator has is that our federal magistrate judges are very good with ERISA issues, which is something that is well illustrated by this decision on the scope of the fiduciary exception to the attorney-client privilege in ERISA litigation. In Kenney v. State Street, the magistrate judge…
Predicting the Future of Church Plan Litigation
By Stephen Rosenberg on
Posted in Benefit Litigation, ERISA Statutory Provisions
Ahh, the wonders of church plan litigation. I had the distinct pleasure at an ERISA litigation conference recently of listening to a leading plaintiffs’ lawyer and a leading defense lawyer, who were both representing parties on opposite sides in class actions concerning whether benefit plans were actually church plans for purposes of ERISA, square off…
Tick Tock, Tick Tock, Pay Attention to the Clock: The Importance of Procedural Timing Issues in ERISA Litigation
By Stephen Rosenberg on
Posted in Attorney Fee Awards, Benefit Litigation
I have been tied up on trial out of state most of January, and am now starting to go back over the more interesting items that landed in my in-box during that time. One of my favorites is this Supreme Court decision in an ERISA case, which essentially holds that a party cannot wait for…