It’s probably become obvious over the years to anyone that reads this blog regularly, that I love contracts. It was my favorite class during first year of law school (everyone else preferred torts, with its car crashes and the like) and one of the reasons I have spent decades litigating insurance coverage disputes is they are really just glorified contract disputes with their own specialized associated body of rules. Even my business litigation practice is often very contract based at heart, such as disputes over deals and transactions that have gone south, which at the end of the day rest on contracts at their foundation. My ERISA practice has much the same flavor – although it is heavily dependent upon understanding and being able to weaponize a whole host of related matters, such as the rules governing prohibited transactions or the law of fiduciary liability, at heart all cases start from one of the most complicated contracts known to American lawyers, the ERISA governed plan.

I have always enjoyed – partly as a result – the art of reducing a really complicated settlement to a written agreement. Not the kind where it just says the plaintiff gets paid and releases all defendants and their insurers from anything and everything, but the kind with lots of contingencies, moving parts, parties and carve outs. ERISA is a natural area for this, but so too are some of the multi-party, large dollar coverage exposures that I have resolved.

One of the issues with that type of drafting, however, is that there is always a question of what to leave in and what to leave out (to quote – or possibly misquote – an old Bob Seger song). I have litigated a number of cases over the scope of settlement agreements (always in the context of me litigating agreements written by others), including in both ERISA and insurance disputes, and the question of interpretation of unclear language becomes a little bit like asking about the number of angels on a head of a pin, meaning it’s really open to debate. Sometimes, the court’s approach to addressing that problem is to simply treat the document literally and declare that, if it wasn’t expressly stated in the agreement, then that is the end of the story, no matter what the parties intended. It can often be hard to get courts to go past that initial approach, which can be very frustrating for parties who know that neither they, nor the other side, actually meant the interpretation adopted by the court using that rubric.

So I thought this new decision out of the Massachusetts trial court was terrific, holding that a settlement agreement could be reformed to correct a drafting mistake where the extrinsic evidence was sufficient to demonstrate that a term was only omitted for that reason. The devil, of course, in these scenarios is always in the details, as to whether there is enough evidence to persuade a court that this type of an error occurred, but these types of holdings are few and far enough between to warrant filing this one away for future use in a case.

You can find a Massachusetts Lawyers Weekly article on the decision here, although I suspect it’s behind a paywall.

I am continuing with the countdown of my top ten most popular blog or LinkedIn posts of 2025, and we have now made it all the way to number four. For those of you new to the countdown, you can find the rules of the contest here.

The fourth most popular post of 2025 is one I am very fond of, because it draws on my experience litigating a range of cases in a variety of areas over the past thirty years. In it, I discuss how my past life as a patent and IP litigator (which was at least a third of my practice running up to the Wall Street collapse in 2008, at which time ERISA class action defense and related litigation arising out of the downturn swallowed up every spare minute I had) can help us figure out the way forward for defanging the boom in ERISA class action litigation.

With that introduction, the fourth most popular post on my blog in 2025 was this one: “Déjà vu All Over Again! What Patent Trolls Can Teach Us About Tackling Problems in the ERISA Class Action Industry.“

This week’s Five Favorites is very ERISA heavy. Sometimes that’s just the way the world spins, as there is a lot going on with retirement plans and ERISA litigation, even at the Supreme Court. A lot of it touches on some of my favorite topics, such as the role of the jury trial in ERISA litigation, or on the most important topics in ERISA at this point, such as allowing private equity investments into 401(k) plans. So here goes this week’s entry in this series of posts, and I hope you enjoy it:

  1. I believe it is United States District Court Judge Young, in Massachusetts, who I have heard routinely say, in setting firm trial dates, that nothing concentrates the mind like an execution date – implying that nothing focuses lawyers and clients on settlement like the impending risk of a trial. Very few ERISA cases, particularly large exposure ERISA class actions, are actually tried, for various reasons, and there are even fewer jury trials in this context. However, jury trials have become a thing in ERISA class action litigation over the past couple of years, after a major one went resoundingly in favor of the defense. Since then, though, the risks for plan sponsors, plan fiduciaries and their insurers inherent in trying these types of cases to a jury have become manifest, with some bad results for defendants, at numbers that would make those concerned in the tort world with the rise of nuclear verdicts stop and count their blessings that a nuclear verdict is typically just ten million or more, and not the numbers coming in from the rare ERISA jury trial. Well, given this backdrop, it’s not surprising that the certainty of an ERISA class action jury trial concentrated the minds of the lawyers and clients in this Massachusetts ERISA class action against Liberty Mutual on settlement, which was reached this week, avoiding a jury trial over 401(k) performance issues.
  2. Look, I am not unsympathetic to the idea that the worst aspects of ERISA class action litigation need to be reined in. I am also not unsympathetic to the idea that the private attorney general model for regulating ERISA plans is a necessary adjunct to Department of Labor regulatory and investigatory tools for protecting plan participants. The issue to me isn’t the meritorious case or the serious effort by serious firms to target abuses and losses to plan participants through class action litigation. The issue is the drive by class action case that results in the quick $2 million settlement with the half million fee to the lawyers, in which the case is filed by firms just looking for a quick payday, in which the average plan participant sees little actual financial benefit from the settlement and the defendant or its insurer settles early just to avoid discovery costs. In my days as a patent litigator, we used to refer to these as strike suits, filed just to trigger a settlement rather than to actually vindicate a patent holder’s substantive rights. But as I have written elsewhere, the tools to control this already exist in the hands of courts and, if they are willing to press them aggressively, defense lawyers. They lie in the assertion of greater court control of discovery, use of tools to phase litigation to decide outcome determinative legal issues long before discovery or defense costs get out of hand, and the like. They even reside in the hands of corporate clients in challenging their lawyers over whether the traditional model of class action defense – motion to dismiss followed by massively expensive discovery followed by a summary judgment motion followed by large settlement payout when, predictably enough in many cases, the summary judgment motion doesn’t resolve the case -is really the right approach to a given case, or whether instead there is a better way to approach a particular ERISA class action case. And given that, combined with the law of unintended consequences, I am highly skeptical of these types of legislative efforts in response to particular court rulings or developments in ERISA class action litigation, which really just seem to be reactive rather than a thoughtful attempt at tackling a complex problem.
  3. Apropos of my point in the preceding item, the recent history of forfeiture class action litigation in ERISA reflects the extent to which the system already pushes back successfully against novel approaches to ERISA liability that seem more intended to create a market for class action lawyers to work in than to fix an actual problem with ERISA plans. This article on the recent defeat of another such case is a good illustration. I wrote a recent post on the three key underlying elements that need to exist to get a court to look favorably on new legal theories, and those elements are proving to be absent in the forfeiture cases.
  4. The Supreme Court is taking up another ERISA class action case, this one involving the use of private equity investments in 401(k) plans, although that is not technically the central issue of the appeal. I wrote about it here the other day. This is a thought provoking piece on the idea that the real issue in this case isn’t what the Supreme Court accepted cert about, but instead underlying issues that the eventual ruling may well bless.
  5. The Supreme Court’s decision to hear the latest action will dominate the ERISA news as well as current thinking on key issues in ERISA class action litigation during the months ahead. Its mere pendency will also impact the progression of and arguments in a variety of already pending actions. It’s also worth nothing that, again apropos of the topics discussed above, it is in many ways another action about pleading standards and what types of barriers to meritless ERISA class action cases already exist, without some sort of legislative effort to put particular rules in place. This is an excellent article to understand the history, status and nature of the case as it goes up to the Supreme Court. At a minimum, it has everything in it you need to carry on a conversation about it at the (now mythical or perhaps always apocryphal) water cooler.

I am determined to finish my countdown of my ten most popular posts of 2025 while we are still within sight of the beginning of the year – in other words, before the calendar flips over to February.

So with that said, I am taking a break from drafting a number of complaints that I am trying to get filed, as well as the great fun of drafting discovery, to write up this post about my fifth most popular post of 2025. The fifth most popular post on this blog in 2025 concerned the lessons for plan sponsors and fiduciaries about including private equity investments in plans that could be drawn from the Ninth Circuit’s decision in Intel.

It’s ironic, and not evidence of a rigged contest, that this post came up as the fifth most popular right now, because the latest news in ERISA land is that the Supreme Court has just accepted cert to hear the Intel case.

So without any more delay, here is the fifth most popular post on the blog from 2025: “What the Ninth Circuit’s Decision in Intel Tells Us About the Fiduciary Risks of Adding Private Equity Options to 401(k) Plans.”

There’s a lot of good content out there these days on the subjects that I care enough to write about here or on LinkedIn: AI and the practice of law, AI and insurance, ERISA litigation and exposures, insurance industry developments, and a number of other topics. I could have easily identified and included way more than five articles, posts, podcasts and the like for inclusion in this week’s Five Favorites for Friday, but as I have said before, both my workload and my preference for alliteration require that I continue to limit the list to five. And so without any more ado, here’s this week’s Five Favorites.

  1. Wondering what all the teeth gnashing is about with regard to the recent filings of class actions against plan sponsors and brokers concerning voluntary benefits that provide employees with additional coverage that fills in the gaps left by group health insurance? Nevin Adams tells you what those cases are all about in this article. My prediction? By the time these lawsuits and their inevitable offspring are done, either health insurance is no longer a plump and enticing target for the ERISA class action bar or else within ten years, just as occurred in response to 401(k) plan litigation, the structure of this entire area of benefits is fundamentally different than it is right now. Which one it will be tests my powers of prognostication, and here is why. The firm that filed these class actions not only knows what it is doing, but also doesn’t tend to waste its powder. Having filed these suits, the lawyers undoubtedly have the facts and legal theories to back up their claims. On the other hand and pushing back against this outcome is the skepticism we have been seeing for a while now by courts with regard to the latest theories and claims in ERISA class action litigation, which may continue in the future with the judicial response to these claims. If it does, I think you will see it in the handling by the courts of the safe harbor issues – but that’s a big topic all on its own, and too much to bite off here in a single paragraph addressing just one of the Five Favorites for this week. (If you are particularly interested in this precise point, though, I would love an excuse to discuss it in detail so feel free to reach out).
  2. I have been thinking a lot about the possibility that, despite the AI hype that it will replace lawyers or eliminate law firms, AI is more likely to do something still more radical and, for practicing lawyers, of potentially much more value: namely, free us from the mechanical, rote part of practice to instead act like the counselors, advisors, courtroom advocates, and the like that, on our best days, we are and aspire to be. I had been a little reluctant to actually sit down and put pen to paper on the topic, since in many ways this is what patent lawyer Robert Plotkin suggested in an article months ago, back when everyone was still noodling over the “first thing we do, let’s kill all the lawyers” subtext around AI deployment. Now, though, I am even more reluctant to write on the subject, as Eric Dodson Greenberg, the executive vice president, general counsel, and corporate secretary of Cox Media Group, just said the same thing, in this article. I highly recommend it and, I have to be honest, am not sure I would have said it any better if I had in fact sat down to write on this subject.
  3. I really like markets, of all types. I even wrote an article on LinkedIn comparing private equity investments in 401(k) plans to my local farmstand and market. But, as a practicing lawyer, the kind of markets I am really interested in are business and financial markets of all kinds and the impact on clients and lawyers of changes in them. For instance, I have written many times on the fact that deteriorating labor markets inevitably lead to an increase in disability, pension and other ERISA litigation. But one of the most fascinating markets to me is the one for insurance coverage, or more accurately, the multiple markets for different types of insurance, which can vary depending on the particular form of coverage for which one is in the market (pun intended – sorry about that). I have seen hard markets, soft markets and everything in between with regard to different types of insurance over the years I have been a coverage lawyer, and the differing factors that affect the type of market at any given time are complex and fascinating. You can see all of that in play here, in this blog post, on the current nature of the insurance market for cyber coverages. I confess the article is a little dated by the standards of the Five Favorites post, but it’s new to me and does a great job of explaining how insurance markets operate.
  4. For those of you keeping track at home, the next move in the effort to add private equity investments into 401(k) plans belongs to the Department of Labor and the instructions to it to issue regulatory guidance on the issue. Here’s the latest development on that, which suggests the regulatory process for its issuance is moving along apace. Color me basically nonplussed no matter what it says (hate to prejudge, but . . .) Why is that? Because I don’t think it is possible, after Loper and years of litigation over various ERISA safe harbors, for the DOL to conclusively regulate away the potential liability and class action litigation risks for plan sponsors and fiduciaries buried within the effort to add these investments to plans.
  5. A thousand times this. Legendary investor Charlie Munger once said “show me the incentives and I will show you the behavior.” Retired federal court judge Mark Bennett argues very persuasively in this LinkedIn post that the Federal Rules of Civil Procedure have created a perverse incentive structure that has led to unintended results that are harming the practice of law, courts and clients. I could write a law review article on this subject and I cannot possibly address all the subtleties of this issue here, in one paragraph. But there is no quarreling with his point that the rules and their implementation are at the heart of a system that overemphasizes unnecessary discovery and with it increased costs to clients. I suspect I speak for many experienced courtroom advocates when I say just give me all the documents, a way to make sure I was given everything relevant, an accurate itemization of damages, a legitimate list of witnesses and their subjects of knowledge, and a finite and preset number of depositions, then let’s set a trial date. (Okay, to be fair, maybe I would still like the opportunity to write and file a summary judgment brief before going to trial, in cases that actually might be served by a summary judgment motion).

We are now on the sixth most popular post in my annual top ten countdown of blog and LinkedIn posts from the year just gone by. You can find the rules of the contest here.

The post that finished sixth asks the seemingly eternal question of “What Do You Do on Appeal With a $90 Million Bad Faith Judgment?” Although they were not originally written as a two-part series of posts, it is a follow up to the issues addressed in the seventh most popular post of 2025, which I discussed here. In the first post, which finished seventh in the countdown, I discussed the issues raised by a $90 million bad faith verdict. In the second post, which is the one that finished sixth, I discussed the question faced by the defendant insurer in that case, which is whether to take an appeal through to conclusion on that case.

You can find the post that finished sixth in the countdown, here.

This post continues the countdown of my top ten posts of 2025. I was aiming to finish the countdown by the first of the year, but the road to heck is paved with good intentions and all that. I will now settle for finishing the countdown before the last week of the month if I can. (If memory serves, I was way later than that finishing last year’s countdown of my top ten posts from 2024). For those of you new to the countdown, you can find the ground rules here.

There are 90 million reasons to read the seventh and sixth most popular posts on my blog or LinkedIn in 2025, namely the $90 million in bad faith damages entered against Liberty Mutual, which is discussed in both posts. Today I cover the seventh most popular post from 2025, which was titled “What’s a Nuclear Verdict When Doubled for Insurer Bad Faith?” It’s the story and lessons of a massive bad faith verdict, and of the fact that it was massive because it came on top of a nuclear verdict in the underlying tort action itself. The sixth most popular, which I will cover the next time, discusses additional issues raised by the same judgment.

You can find the seventh most popular post here. Hope you enjoy it.

And their off! The old racing call seems like a good fit for the first week of a new business year, as everything and everyone that was put to the side for the last two weeks of December comes racing back onto the desktop.

And so it has been as well with articles, blog posts, videos, podcasts and the like this week, as everyone fires up the old content generator again.

For anyone new to this series of posts, here’s a rundown. My “Five Favorites for Friday” blog post is a weekly series – published, unsurprisingly given the title, every Friday – reviewing five articles, videos, podcasts or the like that caught my eye during the preceding week and that I want to discuss and share.

And with that, here is this week’s fabulous fivesome:

  1. Insurance is morphing away from being simply payment for a covered loss and to a form of partnership, in many instances, between insurer and insured to both first avoid and mitigate loss, and then to reimburse for it if needed. This will be no surprise to many in the industry, but I think for others, they may not have noticed how much of this has occurred, simply because it has taken place over the course of a number of years. If you haven’t been paying attention along the way, it can seem, to steal an old phrase, like the changes occurred slowly, then all at once, but in reality, it has been a long and gradual process, but one that now seems to have hit the proverbial tipping point. I could tell a host of stories about this, such as what EPLI coverage has changed into since I worked as a coverage lawyer on its first rollouts, or the extent to which the scope of both coverage and insurer control has changed in fiduciary liability policies from the time I first defended a case under one until today. This short article from Sompo on the risk mitigation and prevention aspects of cyber policies illustrates the point nicely. With climate change and tech risks becoming ever more central to the insurance environment, this type of faux or quasi partnership between insured and insurer either is already or will be the wave of the future.
  2. AI in claims handling is a fascinating issue on a number of levels. First off, there is no question that some aspects of claims handling are ripe for AI intervention regardless of the type of coverage at issue, and that some forms of coverage – first party in particular – are well suited to its widespread adoption. On that last point, for instance, there is no reason, beyond the challenges of the software, that AI can’t determine whether a cracked car window claim is covered, apply the deductible and approve – or reject – a particular vendor. The issue is going to be more in third party coverages and similar areas where reasonable people can disagree on coverage or settlement decisions made by an insurer. I have written about this in the context of claims handling statutes and bad faith claims more than once, such as here. This Fenwick & West piece, and this Lion Specialty post, among many others, make clear that insurance regulators plan to tackle this directly and publicly. Barring federal preemption, I don’t think there is any doubt that state regulators and legislators are going to assert control over this issue and dictate some of the key terms of use of AI in insurance, at least in claims and in policyholder facing aspects of the industry.
  3. “In 2025, more than 1,700 class lawsuits were settled for a total of $79 billion—nearly double the amount from the prior year.” That’s the click bait data point from Forbes’ review of the past year in class action litigation. The article goes on, though, to talk about some of the substantive issues for companies and industries arising from this class action boom. After over a decade of vigorous class action litigation over 401(k) plan fees and expenses, one issue that is often overlooked when the discussion just shifts to the amounts at issue is the extent to which that litigation campaign and history has reshaped so much of industry practice in this area. It’s the single best example of the private attorney general model of corporate regulation that we have ever seen, in my view. Now those same lawyers are coming for health and similar benefits. Buckle up.
  4. In an article in Above the Law, lawyer turned tech journalist Stephen Embry discussed the open question of what the future, in the face of AI, looks like for lawyers in light of a new AI native law firm that, apparently, will basically do securities compliance work solely through AI tools. This gets us to the root problem when people talk about AI replacing lawyers or being able to practice law, which is that it depends on how you define lawyering. Taking ten rules of compliance and twenty examples of violations each, and then running trading or similar actions against them to determine whether compliance is met, is perfect for AI – it is simply applying a fixed body of rules to a set of circumstances. If that is your definition of lawyering, then certainly AI can do it. Likewise, if you define lawyering as just crafting slightly different versions of documents created for similar transactions a thousand times before, then certainly AI can project out the differentiation and spit out the document. But that represents the commodifiable portions of the practice of law, the types of almost rote training work assigned to associates and young partners to build their foundational knowledge and skills. Most experienced lawyers, if pressed to speak bluntly, wouldn’t even consider most of that to really constitute lawyering – they would instead consider lawyering to be the judgment calls, the advice, the new approaches to new problems, and the like that clients actually pay for (rather than the documentation, which just comes along with it). That’s the Rubicon that AI still has to cross before there can be any serious discussion of AI either practicing law or replacing lawyers, rather than just being another technological innovation that commodifies certain aspects of the practice, although admittedly in very dramatic and more extensive ways then we have seen in the past with other techological advances. (If the differential between lawyering and AI driven work product interests you, follow me on LinkedIn for more on this topic – I seem to be posting more and more on the question of how much of what AI does is really what we mean by lawyering, as opposed to just elements of the work of a lawyer).
  5. I have written extensively on my views about nuclear verdicts, developed through decades of studying large verdicts for purposes of both advising insurers on how to resolve or avoid them as well as for purposes of litigating the bad faith and coverage actions they inevitably generate. Central to my views and writings on this subject is the rejection of the idea that nuclear verdicts are something unpredictable, attributable to the bad faith tactics of plaintiffs’ lawyers or to the biases of jurors, and are a surprise outcome in a given case. My view is that they are instead generated by predictable circumstances and fact patterns that reappear time and again across overly large and nuclear verdicts, meaning that insurers have the ability to avoid nuclear verdicts by learning to identify the claims that are likely to trigger them in time to settle before or during trial. After all, a too high settlement is still magnitudes less than a nuclear verdict. So I was extremely pleased to come across this detailed article explaining how nuclear verdicts are not arbitrary but instead attributable to predictable differences in the exploitation of information, and calling on insurers to match the plaintiffs’ bar in this regard. Nuclear verdicts aren’t a mystical thing – they are a predictable outcome of repeating patterns, and it is on insurers and their defense counsel to learn to identify (and settle) the risky cases before they can turn into nuclear verdicts.

Are you old enough to remember Soviet figure skating judges in the Winter Olympics? They used to be accused all the time of putting their thumb on the scale, lowering the allegedly “objective” scoring for American skaters so as to get the results they wanted. If you recall, I reserved the same right this year in counting down the top ten posts on this blog and by me on LinkedIn in 2025.

Today’s post in the Top Ten, which comes in at number eight in the countdown, is the first instance in which I have lowered a post from where it would otherwise rank on sheer number of readers based on subjective, Soviet thumb on the scale judging.

Why? Well, it’s a great post, in my opinion – it has video, it has internet mob currency, it has McDonald’s in it, it has AI, it has insurance bad faith, it is visually appealing (if I say so myself) and it makes a good point. And, judging from the number of readers, it is an objectively very good post.

But it has a relatively high flash to substance ratio (by the standards of lawyers and legal thought, at least; we are not exactly in TikTok influencer territory here) and I am, by nature, more of a substance over flash lawyer.

So I dropped it a couple of notches in the countdown for these reasons, but to be fair, I really like it nonetheless.

And so, here is my eighth most popular post on this blog or on LinkedIn in 2025, which asked what internet backlash against a very funny but AI driven McDonald’s ad can teach us about insurers relying on AI in claims handling.

It’s the first Friday of the Year of the Horse, making it time for the first Five Favorites for Friday post of the year. As a reminder, every Friday, I do an entry in this series, each of which covers five topics, posts, articles, podcasts or videos that caught my attention over the preceding week but which I didn’t have time to post about in any depth on either this blog or LinkedIn. For those of you who may just be joining this series with the start of the New Year, you can find the first entry, and more information about the series, here.

A tremendous amount of interesting information crossed my desk this past week, but I narrowed what I wanted to talk about today down to the following five. So let’s get to it.

  1. They say that a fish doesn’t know it lives in water, meaning that we often don’t recognize the details or unusual aspects of the environments that are native to us. I thought of this when I read this article about the growing scope, use of and industry capacity for captive insurance. Probably because the Harvard medical institutions used a captive insurer structure when I started out and I did coverage and bad faith work for their excess insurers, I spent large amounts of my time in the first decade or so of my career working on captive insurance issues. It even involved working with the captives, the insured entities, reinsurers and others to resolve what we would now call nuclear verdicts against the insured entities, as well as being the junior associate on some fascinating coverage and bad faith disputes related to the actions of captives. Like the fish in water, captive insurance was just the environment I was in, and I thought it was a commonplace structure across the industry. It literally wasn’t until I read this article on its expanding use in the industry that it occurred to me that captive insurance is actually a little bit of an unusual beast within the industry as a whole.
  2. Nevin Adams wrote a great end of the year review of ERISA and retirement plan developments in 2025. It’s the kind of article I would have loved to have written, but that a practicing ERISA lawyer just could not possibly find the time to write at the end of the year, given plan amendment and other end of the year deadlines. I agree with Nevin’s conclusions and view, though, that for a year in which there was no significant statutory activity, it was a ridiculously challenging year for retirement plans from an operational and execution perspective.
  3. I am going to say out loud what most clients and potential clients or target audiences already know – most law firm newsletters and similar content are useless pablum. A few are really good and I read them. What makes them different? They either tell me in depth how to solve a particular knotty problem in my field or they use hard won expertise to provide some guidance about the near term future. In the latter category, I like this Haynes Boone newsletter’s article addressing the halting progress towards developing a consensus on how policy language should be read in regards to cyber claims. History is littered with decades of coverage litigation caused by the uncertain fit of particular policy language to widespread risks, such as pollution, and whether that will occur as well with cyber losses in the future is a key issue to study and plan for.
  4. I have written numerous posts and articles cautioning plan sponsors, fiduciaries and their lawyers about rushing head first into adding alternative investments to the 401(k) plans they oversee.  This particular post here is the keystone of my thinking on this issue, and I have written numerous other articles, blog posts and LinkedIn posts to the same effect or on narrower aspects of this issue.  This series of podcasts points out a broader point as to why plan fiduciaries and their counsel should play it safe and stay on the green on this issue – there is just way too much uncertainty on way too many issues concerning the economy for it to make sense for plan sponsors or fiduciaries to play hero ball or to get ahead of their skis right now on any issues where they don’t have to do so right now.  And adding alternative investments to 401(k) plans is one of those issues.
  5. I have written a great deal on the two faces of ESOPs.  When done – and run – in good faith, they are the embodiment of the best of capitalism, a win-win for both employers and employees. But their design and operation are open to manipulation and, with it, litigation, to the detriment initially of the employees and eventually, through the costs and potential liabilities of litigation, employers and company founders.  This write up by Kantor and Kantor of a case – Botterio – alleging misconduct in operating a plan illustrates my point.