I suspect that no one understands as well as an ERISA litigator the extent to which the rules governing judicial decision making either determine the outcome of a dispute or, at a minimum, dictate a specific and limited range of potential outcomes as well as establish the respective odds of each. In the context of
Standard of Review
What Does Arbitrary and Capricious Review Really Mean, Anyway?
It’s very difficult to write with any nuance about discretionary review under ERISA plans, or what is more typically referred to as “arbitrary and capricious review.” I believe it is because it’s one of those areas of the law where, even more than most, where you stand depends on where you sit. In other…
I Have a Theory That There Is a Baked In 20% Systemic Tax on Retirement Benefits in America
There is an interesting article in the Guardian on the subject of structural and policy barriers in the United States to the elimination of poverty, which is addressed in a new book by a MacArthur award winning sociologist. I think the New Yorker has a new article out on the same topic, probably based on…
Prevailing in an ERISA Case Under Discretionary Review Gets Harder for Insurers
There is an excellent article in Massachusetts Lawyers Weekly this week by Eric Berkman on a new District Court decision by Judge Woodlock in Massachusetts concerning mental health benefits and the nature of the review provided by an insurer. The decision, K.D. v. Harvard Pilgrim Healthcare, found that the insurer had an insufficient basis…
Halo v. Yale, the Second Circuit, Hamilton and Sideways Challenges to the Scope of Discretionary Review
In the musical Hamilton, everyone from Aaron Burr to Hamilton’s wife, Eliza, asks why Hamilton always “writes like he’s running out of time,” and the lyrics assign various pop psychology rationales to his urgency. This morning, though, after listening to the soundtrack again, I realized the real reason – he’s a lawyer! He’s always on …
My Exclusive Interview with Fiduciary News on ERISA Litigation
The good people at Fiduciary News gave me a soapbox, and I was happy to climb up on it. They interviewed me as part of their series of monthly interviews on ERISA and related topics, and I discussed ERISA litigation and a wide range of related issues. You can find the “Exclusive Interview: ERISA Attorney…
Clearing Out the Attic of My Mind: Notes From ACI’s 8th National Forum on ERISA Litigation
With all due apologies to longtime Globe sports columnist Dan Shaugnessy, who would periodically “clean out his desk” by running a column of short bits he had collected, here’s a list, in no particular order, of interesting (to me, anyway) items I took away from ACI’s excellent 8th National Forum on ERISA Litigation in…
Excessive Fee Litigation Remains a Hot Topic
There’s a nice overview from Bloomberg BNA on plan fee litigation, and its status in the courts at this point in time. The article opens up by setting the stage:
Plan fee litigation had a big year in 2013, with divisive appellate court decisions affecting standards of judicial review, statutes of limitations and functional fiduciary
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Me, Massachusetts Lawyers Weekly and Gross v. Sun Life
Eric Berkman’s article in this week’s Massachusetts Lawyers Weekly on Gross v. Sun Life, in which I am quoted, does an excellent job of explaining the case, particularly to those readers who do not have years of experience with ERISA cases, benefit litigation, or the long history of the law in this circuit…
A State of the Art ERISA Benefits Decision from the First Circuit: Gross v Sun Life
Great, great decision out of the First Circuit a few days ago on ERISA benefits litigation, covering, in no particular order: what language is necessary to establish discretionary review; when does the safe harbor exception to preemption apply; when is an LTD policy part of an ERISA governed plan; the proper weight and mode of…