One of the interesting aspects of litigating ERISA cases is the extent to which, for me anyway, it is part and parcel of a broader practice of representing directors and officers in litigation. From top hat agreements they have entered into, to being targeted in breach of fiduciary duty cases for decisions they participated in related
Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics
Empirical Proof of What I Always Thought (And Said): The Benefits of Litigation over Arbitration
This is great. I have lost count of how many times I have explained my view that arbitration is not, by definition, preferable to litigation for resolving disputes, and that instead, in each and every given case, a party should think carefully about which dispute resolution forum is preferable. I have written and spoken on…
Working Backwards From a Closing
This is a very entertaining and interesting piece from AON’s Mark Hermann, leaving aside any qualms about the seriousness of the website that published it. In it, Hermann makes the case for litigation counsel to provide overviews to their clients structured around the question of how they plan to win the case, rather than just…
Litigating Executive Compensation Disputes
Is there a more hot button topic in the world, just as a general principle, than compensation, especially of the executive kind? From Salary.com to the outrage of politicians over financial industry pay, the subject is never far from your internet browser. In fact, just for amusement’s sake, I just googled executive compensation, and the…
The IRS – A Safe Port in a Storm for Plan Fiduciaries (Sometimes, Anyway)
Well, as if there weren’t enough barriers to successfully prosecuting breach of fiduciary duty actions under ERISA, it turns out that you also can’t do it if the fiduciary’s errors consisted of wrongfully withholding benefits and turning them over to the IRS as tax payments. A participant, according to this opinion fresh off the presses…
When An Expert Deviates
Lies, Damn Lies, Baseball Statistics and Wal-Mart
I don’t know, maybe I had something rattling around in my brain about statistics in light of the then still pending Wal-Mart case when I wrote my last post, ostensibly about the use (and misuse) of statistics in baseball analysis, and less ostensibly about the use (and misuse) of statistics in litigation. I…
Lies, Damn Lies and Baseball Statistics
I am going to take a flyer, because after all this is my blog, and post a digression that really has nothing to do with the subjects of this blog, other than the fact that it relates to the significance of statistics and their impact on litigation, including financial litigation involving ERISA plans. I have…
On Disclosure and Conflicts of Interest
In my life as a trial lawyer, I have found myself in a recurrent situation, in which a judge or an arbitrator eventually looks at me in an argument over discovery and asks if I really want the information I am after, as it could run against me. I always answer the same way, to…
Percentage Players Die Broke Too
I have always wanted to write another blog about trial tactics and litigation strategy, and call it Percentage Players Die Broke Too, after the famous line by Paul Newman in the world’s finest film, The Hustler (that’s the first one, mind you, not the embarrassing sequel they did with Tom Cruise many decades later).