ERISA litigation goes through phases and waves. It wasn’t that long ago that it seemed I was constantly litigating, in multiple cases, the distinction between so-called ministerial functions – which cannot support fiduciary liability – and fiduciary conduct. Here’s one example. Over time and a number of judicial decisions, an interpretative bulletin issued by
This week, I cheated. I have known since Tuesday that I wasn’t going to have time to either blog or post on LinkedIn this week on even a small portion of the articles, ideas, podcasts and presentations that were crossing my desk and catching my eye. So I started writing this week’s Five Favorites for
I talked briefly about withdrawal liability in my very first “Five Favorites for Friday” post, which you can find here. Because there is often so much money at stake, and because unions are aggressive in pursuing and claiming withdrawal liability payouts from departing employers, and because departing employers so want to not pay withdrawal
As I discussed in this earlier post just last Friday, I am now running a series of posts, each to be published on Friday, covering five articles of interest that I didn’t have time to write about – or write enough about – during the week just ending. This past week was busy and full
Fred Reish has an excellent article out on the technical and substantive aspects of the executive – and soon to be regulatory – efforts to open 401(k) plans to alternative investments, with a particular focus on the targeting (pun intended) of target date funds as the channel for bringing them into the investment holdings of
In earlier posts in my Plan Sponsor and Fiduciary 2.0 series I promised to provide a cheat sheet for fiduciaries confronting the push to add private equity and other alternative assets to 401(k) plans. Here it is, with a focus on private equity assets, because that is where most of the initial action currently is
Many commentators are suggesting that the recent executive order and the directive for regulatory action towards adding private equity and other alternative assets to 401(k) plans does not mean that those assets are destined to end up in 401(k) plans. But personally, I think that belief is almost certainly naïve – particularly with regard to
One of the themes I have returned to time and again with regard to excessive fee and other class action litigation under ERISA is that the traditional litigation approach deployed for years by the plan sponsor community needs to be updated. With some variation, it has followed the traditional defense model typically used in class
I have long been inordinately fond of the Dickens’ line “It was the best of times, it was the worst of times.” It is applicable to many things at many times, and I have used it in briefs, slide decks, presentations, and conversations. But at this point in time, for plan sponsors and plan fiduciaries
I wanted to quickly pass along, with a couple of comments, this excellent blog post by Scott Galbreath of Trucker Huss on a recent Ninth Circuit decision on interpreting and applying releases of ERISA claims executed by employees. As the post points out, the Ninth Circuit adopted the tests of other circuits, including the First