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144 Matching News Items

1.  What if Trust Law Cannot Support the Moench Presumption?
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
Apr. 29, 2014
"The extent, nature and degree to which the Supreme Court grapples with these two issues -- whether either the terms of the statute or the scope of trust law can support the presumption -- will tell a very interesting tale, by illustrating whether the presumption's status is actually driven by the legal foundation crafted by the statute and trust law or, instead, by an outcome driven need to balance the securities law regime with the dictates of ERISA. If the presumption is found valid, one will need to look closely at whether the Court was able to properly base that conclusion in the historical intricacies of trust law or in the statute's language. If so, then the presumption can be understood to follow naturally from existing law; if not, then the presumption must be seen, as many have argued it is, as simply a convenient judicial fiction, one not properly founded on either trust law or statutory language, used to balance conflicting legal obligations imposed by distinct statutes."
2.  Pay or Play Acts, the Ninth Circuit, and the Never Ending Law of Unintended Consequences
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
Oct. 5, 2008
Excerpt: Among the most prominent decisions issued while I was in court was, obviously, the Ninth Circuit's ruling finding that San Francisco's pay or play law was not preempted by ERISA. Can't say I buy that one. Whatever is the scope of preemption in the field of ERISA, it logically reaches state efforts that result in a multi-jurisdictional company having to comply, with regards to its employee benefit plans, with a differing web of regulation that varies from one state to the next. Of more interest, perhaps, is the wide ranging group of consequences, some predictable and others unintended, that the Ninth Circuit ruling likely unleashes.
3.  Hecker and the Development of the Law on the 404(c) Defense
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
Apr. 14, 2009
Excerpt: One of the Seventh Circuit's most interesting tricks in its recent decision in Hecker was the extraordinary breadth it gave to the 404(c) defense. This was an aspect of the decision that raised a lot of hackles, and I noted in my own post on the case that I doubted this was the last word on the subject and that it would be interesting to see how the case law developed as other courts tackled this question. Well, here's a decision from a week or so ago out of the United States District Court for the District of New Hampshire taking a much narrower approach in interpreting the amount of protection granted to fiduciaries by section 404(c), finding that the defense does not apply to 'a fiduciary's designation of the investment options that are available to plan participants.'
4.  Follow the Numbers: the Evolution in ERISA Law
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
June 2, 2008
Excerpt: I have noted two things - well, many things, only two of which are relevant to this post - in the past, one the line that Marx was wrong about a lot of things, but he was right that everything is economics, and the second that we are beginning to see an incremental evolution in the law of ERISA to account for the reality that pensions - predominant at the time of many of the earlier, key court rulings on ERISA - have been supplanted by defined contribution plans.
5.  What Happens When ERISA and the Law of Insurance Coverage Collide?
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
Apr. 13, 2008
Excerpt: Wow, I guess this is really Seventh Circuit week here, with, I guess, a particular focus on the jurisprudence of Judge Easterbrook, whose opinion in Baxter I discussed in my last post. This time, I turn to his decision from Wednesday in Federal Insurance Co. v. Arthur Andersen, which strikes right at the intersection of the two subject areas in the title of this blog, insurance and ERISA.
6.  Disclosure of Information: Where Securities Law and ERISA Diverge
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
Jan. 5, 2009
"Cool, what a nice treat to me for the first real workday of the New Year. I have always wanted a reason to link to the Harvard Law School Corporate Governance blog because, well, it just sounds so impressive (that plus it's a really good read on all things corporate), and one of their contributors handed me the opportunity over the weekend. In a post addressing SEC requirements for online posting of public company proxy materials, the author -- a Gibson Dunn partner and visiting professor at Georgetown -- points out how these requirements differ from the notice requirements under ERISA[.]"
7.  What Does Arbitrary and Capricious Review Really Mean, Anyway?
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
Jan. 23, 2024
"[If] you are a plan administrator or sponsor, or a lawyer representing one, you think it describes a standard of review that should broadly insulate plan decisions from challenge, while if you are a plan participant, or a lawyer who represents plan participants, you think the entire doctrine is a wrong road that the Supreme Court set off down years ago without thinking and from which no one can now exit.... [In] the real world, arbitrary and capricious review is often little more than a shibboleth that precludes, rather than encourages, careful thought over these issues."
8.  Cancelling a SERP and the Limits of Preemption
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
June 25, 2013
"The [Sixth Circuit] found that the dispute over the SERPs concerned a decision to cancel them so as to smooth the sailing for a particular corporate acquisition ... [U]nder those circumstances, the executives who were participants in the SERPs could prosecute a state law claim in state court, on the thesis that it does not affect the terms of the SERPs or the duties imposed by it. The Court found that the state law claims did not require interpreting the SERPs or applying duties owed under them, but only required reference to the SERPs for the specific purpose of determining the damages due the executives if the SERPs were, as alleged, canceled in violation of state law." [Gardner v. Heartland, No. 11-2327 (6th Cir. May 10, 2013)]
9.  What the Verdict in Yale Tells Us About a Time-Tested Way to Reduce Excessive Fee Litigation Against Plan Sponsors
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
July 7, 2023
"[T]his outcome -- whether it had been after trial to the bench or instead to a jury -- is one more fact showing that the best industry wide approach to these types of claims is to say 'prove it' and force plaintiffs' counsel to do so at trial, without regard to whether it will be tried to the bench or instead to a jury." [Vellali v. Yale Univ., No. 16-1345 (D. Conn. Jun. 28, 2023)]
10.  Did the First Circuit Just Change Its Test for Preemption?
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
Aug. 4, 2014
"Historically, courts in the First Circuit have focused on two concepts in deciding whether a state law claim is preempted: [1] whether the state law cause of action seeks to supplement the causes of action available under ERISA itself; and [2] whether the state law claim requires consideration of the ERISA plan to decide the claim or would dictate specific terms or operational procedures for the plan.... [T]he First Circuit [recently] discussed the second concept by, in essence, applying a sliding scale analysis that considered how much impact the state law in question actually had on the ERISA governed plan, finding that too much equals preempted, while too little equals not preempted." [Merit Construction Alliance v. City of Quincy, No. 13-2189 (1st Cir. July 16, 2014)]
11.  If the Plan Fits, You Must Acquit (Or at Least Preempt)
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
July 7, 2009
Excerpt: Here's an interesting case for you. Here in the First Circuit, we have plenty of case law making clear that theories of liability that serve as alternative enforcement mechanisms to those set forth in ERISA itself are preempted. What about the circumstance where the cause of action is not necessarily an alternative enforcement method but would nonetheless require the fact finder to reference the terms of an ERISA governed employee benefit plan to determine whether or not the plaintiff's state law cause of action is viable? Is there a point at which the state law claim becomes too remote from the existence of the ERISA governed employee benefit plan for it to be preempted?
12.  The Church Plan Exemption and Kaplan v. Saint Peter's Healthcare System
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
Jan. 14, 2016
"The Third Circuit's opinion is a great read, and very persuasive. And yet in some ways, while very compelling, it reads almost as much as a political document -- in the sense of being written to persuade an audience -- as it does as an inevitable outcome of sharp legal reasoning (which it clearly is as well). The Court provides a very plausible interpretation of the statutory language itself, but if that analysis stood alone, segregated from the supporting arguments relied on by the Court for its interpretation of the church plan exemption that are based on canons of statutory interpretation, on legislative history and on the public policy behind ERISA, that analysis would not be half as persuasive." [Kaplan v. St. Peter's Healthcare System, No. 15-1172 (3d Cir. Dec. 29, 2015)]
13.  The Seventh Circuit Puts a Spin on Discretionary Review
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
Mar. 16, 2009
Excerpt: There is an interesting twist to a recent Seventh Circuit decision, Leger v. Tribune Company Long Term Disability Plan. The decision starts out as an attempt by the participant to resuscitate her benefits claim by invoking Glenn v. MetLife and asserting that a structural conflict of interest existed warranting an alteration to the standard of review. The Seventh Circuit, though, quickly rejected that position, finding that there wasn't even a conflict of a level that warranted being considered as a factor in conducting an arbitrary and capricious standard of review.
14.  The Lessons of First Data Corp.'s Suspension of 401(k) Contributions
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
July 16, 2013
"First Data has gone one step beyond simply the transitioning of employee retirement risk to employees by means of 401(k) plans, by removing the certainty -- and cost to the company -- of cash contributions in favor of [stock] awards that do not increase the employees' current retirement assets. There are multiple problems with this step, viewed from the prism of retirement policy.... [T]he stock grants ... may not be made as part of an ESOP or otherwise within the context and confines of an ERISA governed plan. If this is so, then the plan sponsors will avoid the obligations and potential liabilities that come with fiduciary status, when it comes to the granting of the stock and company decisions that impact the value of the employees' stock holdings down the line[.]"
15.  Gobeille v. Liberty Mutual Insurance Company: The Interesting Things Are in the Concurrences and the Dissent
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
Mar. 15, 2016
"[T]hree justices -- Thomas, Ginsburg and Sotomayor -- in two different opinions (one concurring and one dissenting) wrote independently to suggest that ERISA preemption has gone off the rails and either may not be (in Thomas' view) or is not (in the view of the other two justices) as broad as the majority opinion insists, or as broad and sweeping as most ERISA litigators argue. Both opinions, in fact, give guideposts to litigators for arguing in the future against preemption, with Thomas, in fact, seemingly inviting someone, somewhere to attack the very constitutional foundation of applying ERISA preemption to the extent that it has been traditionally applied." [Gobeille v. Liberty Mutual Ins. Co., No. 14-181 (U.S. Mar. 1, 2016)]
16.  The Fiduciary Exception to the Attorney-Client Privilege: What It Is, and Why It Matters
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
Feb. 12, 2014
"[T]he magistrate judge dealt, in a very clean and easily understood manner, with the key issues that come into play under [the fiduciary exception to the attorney-client privilege in ERISA litigation], which have to do with its borders: to be exact, what attorney-client communications are subject to disclosure under this exception, and what ones are not.... Plans and their outside ERISA lawyers ... need to remember that their communications can end up in a courtroom in later litigation that cannot even be foreseen at the time of the communications in question, and should be careful with regard to the accuracy, context, phrasings and tone of such communications as a result." [Kenney v. State Street Corp., No. 9-10750-DJC (D. Mass. Dec. 2013)]
17.  The Lessons of Detroit for Private Sector Retirement Plans
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
July 22, 2013
"Detroit's bankruptcy, as has other municipal bankruptcies, demonstrates the importance of managing retirement risk for employers, and the manner in which the failure to do so in a timely manner can spell disaster down the road, for both the employer and its retired employees.... [C]omparing municipal pension problems with corporate, ERISA-governed retirement plans is a little bit of comparing apples to oranges, but the differences between the two scenarios can't override the key similarity and take away: that ignorance by an employer of its ability long term to continue to make pension promises without regard to a future ability to pay is not bliss[.]"
18.  The Tibble Case: Thoughts on Revenue Sharing and the Small Recovery for the Class Plaintiffs
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
Mar. 28, 2013
"[A] few more victories similar to this one for class plaintiffs in excessive fee cases will put an end to this area of litigation quicker than anything else could, as these types of cases simply would no longer be worth the costs and risks to the class action plaintiffs' bar. However, it is important to remember that the dollar value of the recovery in Tibble was likely driven down substantially by the statute of limitations ruling, which took much of the time period of potential overcharging out of the case and with it, presumably much of the recovery."
19.  The Lesson in the Chicago Tribune ESOP Mess
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
Nov. 21, 2010
"The Tribune case reflects the fact that making use of that stock for transactional purposes can well end up, in at least the outlier cases, with large losses to plan participants, after which the class action bar or the [DOL] are likely to try to transfer those losses to one or more of the parties involved in the transaction."
20.  The Supreme Court, Suffolk Superior Court and Ed Zelinsky, All Commenting on the Breadth of ERISA Preemption
Stephen Rosenberg, The Wagner Law Group Link to more items from this source
May 3, 2009
Excerpt: Two interesting things worth passing along this week on the topic of ERISA preemption, both reinforcing its breadth. The first is this well-written analysis of preemption out of the state trial court in Massachusetts, unusual for the reason that, normally, if ERISA preemption exists, the case ends up by original or removal jurisdiction in federal court; you seldom see a state trial judge write extensively on this subject as a result. Moreover, you don't always see any judge write this well and accurately on the subject[.]
   Next »

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