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I am quoted in an excellent article in Pensions & Investments by Robert Steyer on the use of independent fiduciaries when providing employer stock in company retirement plans. As many of you probably know, the Supreme Court’s decision a few years back in Fifth Third Bancorp vs. Dudenhoeffer raised the pleading bar substantially for plaintiffs…

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…

One of my partners, Mark Poerio, an expert on executive compensation, has written a client alert discussing what companies can consider doing proactively to encourage executives to stick around rather than move onto greener pastures. In short, they are all different ways to make the current position “greener,” so to speak, than competing pastures.…

One of my partners emailed me the other day with kind words about my blog, and I responded that there was plenty to write about these days when it comes to ERISA and insurance. Amusingly, this morning’s inbox ended up presenting the perfect exemplar. I was sitting down to write some follow up comments on…

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…

I recently visited Monticello, a place, being a history buff, I had always meant to tour; suffice it to say, it did not disappoint. Among other things, it was an interesting reminder of an oft-forgotten point, namely that for many years, the American “frontier,” for all intents and purposes, is what is now modern…

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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Continue Reading Notes (and a Prediction) on the Supreme Court Argument on Church Plans