There have been a series of interesting ERISA decisions over the past several weeks out of the United States District Court for Massachusetts, whose Boston courthouse I can see through my office window as I type this post. The decisions have stacked up on my desk a little bit, like a leaning tower of paper. I am going to run a series of posts, some short and others perhaps longer, passing them on with my comments as to their value. The first is this summary judgment ruling in DiGiallonardo v. Saint-Gobain Retirement Income Group, which has to do with a challenge to a denial of disability retirement benefits. It is most interesting, and useful to other practitioners, for one specific point, namely its handling of an administrator’s procedurally poor processing of a claim and its appeal. The court found that the administrator had not considered the actual key term in the contract in ruling on the claim for benefits, and that this required remand to the administrator for a proper handling of the claim, because under those circumstances, the claimant had not received the “full and fair review of the administrator’s decision” to which a claimant is entitled under ERISA. The court found that this procedural irregularity rendered the administrator’s decision arbitrary and capricious.

I expect to be litigating, down the road, issues, complications and conundrums created by health care reform. Let’s be honest – its impossible to imagine any large structural undertaking not generating problems, including unforeseen ones, that will have to be resolved by the courts. For now, though, the issue is more one of planning for changes, and what needs to be done now to accommodate them. My colleague George Chimento, whose paper suggesting that employees should not be given the option of managing their own 401(k) accounts is discussed here, passes along this client advisory on “Baby Steps: an Employer’s First Year under Health Reform,” which addresses these changes.

Over the past week or so, several interesting items have crossed my desk, none of which have appeared while I have had time to do them justice with a full blown post. We will do three for Wednesday today – even though there is no alliteration at all to that title, as opposed to five for Friday or twofer Tuesday – and run them down here.

First is this interesting article on the 403(b) regulations, and the intersection of the tax code and ERISA. It’s a good starting point for understanding the current regulatory status of such plans.

Second, in a perfect intersection (well, almost, since surety bonds aren’t exactly insurance) of the two topics included in the title of this blog, is an excellent post summarizing ERISA’s surety bond requirements. From fiduciary liability insurance to surety bonds to the personal liability of fiduciaries, ERISA in theory, structure and operation, is built around a framework that is intended to surround retirement plan management with pockets of funds that can be used to reimburse plan participants against losses.

Third, here is a nice squib on the question of when ERISA applies to, and governs, severance package programs as part of company reductions in force. Most such programs will fall within ERISA’s ambit, and, as the article points out, it is beneficial to the employer to structure the program to bring it within the confines of ERISA.

Yesterday, the Supreme Court effectively rejected the idea that mutual fund fees, in the non-ERISA context, are not actionable if consistent with the market as a whole, in response to a Seventh Circuit decision finding that a fund did not pay excessive fees to its investment advisor in light of marketplace discipline (I am oversimplifying the Supreme Court ruling a little bit, as this is not actually a blog on the Investment Company Act of 1940). Shrewd observers of ERISA excessive fee case law, or even most casual ones, will likely quickly note that, in the ERISA context, the Seventh Circuit essentially applied the exact same thesis to an ERISA excessive fee claim in its highly influential decision in Hecker, finding, in part, that fees were not excessive if consistent with the market as a whole. In the new Supreme Court decision, the court instead applied a different test – albeit in a different context than ERISA excessive fee claims – to determine whether the fees were excessive, asking instead whether a fee is being charged “that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm’s-length bargaining.”

Is this a what is good for the goose is good for the gander situation? Is the same market based approach to testing fees that the Supreme Court has now rejected in the investment advisor scenario also, by implication, unwarranted in the context of a fiduciary’s obligations to protect participants against excessive fees in ERISA governed plans? Isn’t the test that the Supreme Court references for the investment advisor context equally a good fit for ERISA excessive fee cases, by asking not whether the fees were consistent with the market as a whole but instead whether the fees are disproportionate to the services provided and whether the evidence reflects them to be the product of an arms length negotiation? In many ways, this is what critics of the Hecker test – at least in my case – have complained about: not that the fees being paid by the defendant company in that case were necessarily too high, but rather that the court didn’t adequately test and vet them before deciding that the excessive fee claim had no merit. The Supreme Court’s new (well, actually a restatement of an old) test for fees in a different context would fit the situation very well, much better than the Hecker approach. The standard would still give a great deal of deference to plan administrators, sponsors and fiduciaries, allowing a wide range of fees to pass muster. The standard, though, would require that there be a reasonable linkage between the fees being charged and the value received by the plan, and that the evidence support the conclusion that the fees came about as a result of arm’s length, business like negotiating by the fiduciaries. In essence, this would bring the test back to the prudence required of the fiduciary, by asking not whether the fees were per se too high, but rather whether the evidence reflects that the fiduciary engaged in the basic business activity of seeking appropriate fees.

Here is the new decision from the Supreme Court, in Jones v. Harris Associates, and here, pat on the back to me, is a post I did last November suggesting that the opinion in Jones may well impact the Hecker line of thinking on ERISA excessive fee cases.

I have written before, probably on more than one occasion, about the fundamental philosophical problem underlying electronic discovery, which is that lawyers and courts continue to view it through the traditional rubric of discovery, one formed in the world of paper documents, interrogatory answers, and deposition testimony. As I have discussed in the past, battles over scope, relevance, costs and burden in that context had some built in controls and limits, namely the actual range of existing files, documents and witnesses. Thus, except in the most extreme and outlier cases, allowing broad discovery wouldn’t overwhelm any party, back in the days of paper. That’s not the case today with electronic discovery, which, as we all know, can expand exponentially, without the type of built in, apparent physical limitations that exist with paper discovery.

As a result, when parties begin seeking electronic discovery under the old rubric of it should be produced if it could possibly lead to evidence, and courts look at an electronic discovery dispute through that old prism, you end up with a presumption of production and a correspondingly broad – and expensive – electronic discovery mandate. It is understandable that lawyers and the courts look at electronic discovery through this traditional frame of reference, for we are all products of our training and experience, and neither the federal rules nor the developing case law in this area push very strongly against this traditional approach to discovery. But the costs of applying the traditional discovery thinking to electronic discovery problems are high, because assuming the relevance of discovery and allowing unfettered electronic discovery without strong controls guarantees broad electronic discovery and high costs, given the expense of that area of discovery. The right approach and antidote to this, I have said before, is a shift away from the traditional thinking on discovery, and towards hands on judicial control of the process, one in which cases are staggered whenever possible to avoid electronic discovery into areas that, as the case plays out, may become unimportant (think of, for example, holding off on damages discovery until liability is proven), in which a party seeking electronic discovery that could be burdensome is required to really show an evidentiary basis for seeking it (think, for example, of requiring deposition testimony or other documentary evidence indicating that the electronic discovery could actually hold some evidence of value before the electronic discovery is allowed), and in which a party opposing the discovery must actually prove high cost and business disruption by competent and admissible evidence.

The analogy that comes to mind for me is a Daubert hearing, conducted to test the admissibility of an expert’s testimony in advance of trial. A similar type of mini-trial type proceeding would be a natural forum for testing whether electronic discovery, when challenged by a party, is warranted. It seems a safe assumption that, over time, the amount saved by parties from the reduction in the scope of electronic discovery that would likely ensue would significantly outweigh the increased discovery costs of engaging in a mini-trial of this nature. And as for the benefits to the courts? Well, all litigators know the old saying that nothing focuses the mind on settlement like a trial date; I suspect nothing will more motivate lawyers to compromise on, and agree to, a particular scope of electronic discovery, than the possibility of having to try the issue in a Daubert like setting.

Oh, and here’s a nice article on the problem from the National Law Journal that started this reverie for me this morning.

Are you, or have you ever been, a fiduciary? Sometimes I am tempted to open a deposition with exactly that question, phrased as a derivation of the famous McCarthy era line. While I doubt I ever would do it, it’s the million dollar question in most breach of fiduciary duty litigation under ERISA. It is so often outcome determinative, that many cases go away after a ruling on that threshold issue (whether by dismissal if the answer is no, or settlement if the answer is yes), without anyone ever tackling the question of whether imprudent conduct that fell below the fiduciary standard of care ever actually occurred.

That’s a long lead in to this interesting article published by BNA, in which I am interviewed, on the role of attorneys and whether they can become fiduciaries to the benefit plans with which they work. Lawyers who are in essence working in the traditional role of outside advisors to plans and their sponsors really shouldn’t be deemed fiduciaries, but one can envision, at least in theory, an attorney crossing the line and taking on decision making authority that rightly belongs to plan fiduciaries in a manner that could give traction to a claim that the attorney was, in fact, a fiduciary.

On a side note, I know creating content isn’t cheap, so thanks are due to BNA for freely allowing me to republish the article here.

This is a little item about a large award of attorney’s fees in an ERISA case to a prevailing plaintiff in a case involving only several hundred dollars in actual recovered damages, but it caught my eye for a couple of reasons. Factually, as the story goes, the court awarded some $45,000 in attorney’s fees in a case in which the claimant recovered just over $600, raising the issue of whether the fee award was too disproportionate to the recovery to be justified. Even speaking predominately as a defense lawyer, I don’t think there is any problem with the large gap between the fee and the recovery, nor do I think that proportionality is an appropriate consideration to graft onto the standard for determining fee awards in these types of situations. To be more nuanced, if proportionality is an appropriate consideration for a fee award, then the level at which fees become deemed disproportionate must be a lot higher than in the case at hand; I can foresee the immediate objection as to whether an award of $450,000 to recover a few hundred dollars is too disproportionate, and the answer to that question would probably be yes. However, it is worth noting that in that hypothetical situation, the more salient question is not proportionality, but value of the legal services – it is simply unrealistic to belief that the legal work needed to bring about such a recovery costs or should cost that much. That is not something that is true of $45,000 of legal work to recover an award – of however much – on an ERISA claim; that doesn’t seem out of line with the work needed to win such a case under many typical circumstances.

But proportionality itself is not an appropriate factor, nor an appropriate lens through which to view this issue. To an individual plan participant, a 5, 10 or 15 thousand dollar recovery of additional benefits can be a very significant recovery, one absolutely worth fighting for, but the legal work needed to recover that will almost always cost significantly more. The very purpose of shifting fees under ERISA on participant claims is to allow for that dynamic, and ensure that participants can recover unpaid benefits, even where the cost of suing would exceed the value of the benefits at issue. Worrying about the proportionality of the legal fees to the recovery, under most normal scenarios, undermines that, because in many typical situations, the fees needed to recover the amounts at issue can often exceed the value of the benefits if the participant must litigate the issue to a conclusion to recover the benefits.

The other reason the story caught my eye is that, at the end of the day, the dispute over the several hundred dollars was a dispute between two lawyers who had formerly worked together, and the litigation appears to have been very contentious. Its unclear to me from the story whether the cause of that excessive contentiousness – given the amounts actually at stake – was personal or work related enmity, or simply what inevitably happens when two lawyers sue each other. From a broader perspective, however, it is worth noting that you see similar dynamics time and again with small plans run by small businesses, in which there is often a great deal of informality with regard to benefit plans, leading to highly contentious litigation – often personal in nature – over one partner’s handling of the benefit plan, once the business comes to an end. Compliance, structure, outside management of a plan – all the things that one would hope would be in place and which could diffuse such strife are often missing in that scenario, resulting in ERISA litigation that would never have arisen in a bigger operation with more controls.

I often explain to people that as a litigator, I am typically presented with a knotty, tied up problem, consisting of all the decisions and plan choices that have been made in the past that eventually resulted in litigation, and that I then have to unravel the knot into its constituent pieces, which can then be used to defend the decisions that led to the knotty problem (if I am defending the case) or to attack the decisions that created the knot (if I am instead representing a plaintiff, whether a plan participant or a plan sponsor or other fiduciary). This is a much different perspective on plans and their design and development than that of those who assemble plans, who look at things in a more prospective manner, from the vantage point of the one developing the world from scratch. In essence, their view is the mirror image of mine, as they look at all the independent strands of a plan and assemble them into what, eventually, will become the knot that I get charged with unraveling in litigation.

That more prospective view comes through in Adam Pozek’s excellent post yesterday on the difference between different types of fiduciary advisors to plans, and how to select them, as well as in the excellent source article on section 3(38) and section 3(21) advisors he references. Adam presents a typical scenario of a plan sponsor trying to work through the issues of how to use such advisors, when to use each kind, and the factors to be considered in making such a decision. To someone like me who normally only sees those types of transactions in the rear view mirror, as they are recounted for purposes of litigation (such as in a deposition), it is very interesting to read a presentation of the decision making and the transaction back at the start of the whole process.

This is interesting. I have written before on this blog, on numerous occasions, about courts sometimes engaging in a more searching level of discretionary review that, in essence, is not discretionary review at all, at least in the manner it has long been traditionally understood. The common belief, and applied in that way by many and probably most courts over the years, is that discretionary – sometimes called arbitrary and capricious – review means that an administrator’s decision in a long term disability case must be upheld if there is significant medical evidence in the administrative record to support the administrator’s determination, and that the process of weighing the different pieces of evidence in the medical record – much of which may be conflicting – belongs to the administrator; the court, applying this type of review, is normally understood to not engage in its own independent weighing of that evidence. Actually looking into and weighing that conflicting evidence to decide whether the administrator was correct was traditionally understood to be part of de novo review, not discretionary review.

However, as I have commented in the past, court decisions in this area reflect a subtle shift away from granting that much discretion to the administrator and towards analyzing the credibility and weight of the evidence supporting the administrator’s decision, even as part of discretionary review. Essentially, while applying discretionary review, some courts have begun to look more closely at the evidence to decide whether to uphold the administrator’s decision, finding that the decision is arbitrary if the court disagrees with the administrator over the value of or weight to be given to certain aspects of the administrative record. It’s a gradual and subtle shift in jurisprudence, but one that exists and that can change the outcome of a long term disability case, by affecting exactly how the court reviews the record and the administrator’s decision. The developing jurisprudence over structural conflicts of interest has provided still greater impetus to, and opportunities for, this shift.

Roy Harmon at his always excellent Health Plan Law blog had a perfect example of this in a post yesterday, concerning a Ninth Circuit ruling in which the appeals court looked behind the medical evidence to weigh it in deciding a long term disability case, finding that the evidence, looked at closely, did not support the administrator’s determination. In contrast, though, you can see in that same case how the district court applied a more traditional understanding of discretionary review, which does not involve independently analyzing the evidence in that manner, to find that the administrator’s decision was not arbitrary and capricious since it was supported by substantial evidence in the administrative record. The end result is that you can compare in this case the effect on the same facts of these two different approaches to applying discretionary review, with the more traditional view of it – applied by the district court – resulting in a win for the administrator – and the more searching and activist approach – applied by the Ninth Circuit – resulting in a win by the participant.