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Fee Shifting in ERISA Cases: Considerations in Mediation

"There are important reasons for defendants to be wary that they may have to pay plaintiff's legal fees.  There also are ways that a defendant may -- and may not -- successfully challenge plaintiff's claims for legal fees.... [T]he principal amount at issue is not the only potential loss that is at stake ... It's not hard for plaintiffs to have 'success on the merits' in order to get their fees paid.... Defendants have most success challenging hours billed and certain costs."

If Litigated, There May Be No Winners in Child Mental Health Treatment Disputes (PDF)

"Two recent cases from the Tenth Circuit dealt ... how to treat severe mental health issues of children and how decisions are made about their treatment.... These cases should not have been litigated. Through mediation, there should have been ways to develop compromises that would protect the key needs of the children, parents, and insurance companies. One possibility would have been to create more balance in the decision process, including in that process physicians responsive to the needs of each party."

Using Zoom for Confidential Meetings

"[L]et's look at specific steps that you can take to enhance security.... These are strong protections. They do not completely replicate the privacy of an in-person mediation, but they are close. So what are the problems?"

The Pension Plan is Paid in 35 Years, but the Lawyers are Paid in 2 Years?

"The class action plaintiffs are paid $150 million in 35 years, if at all. The plaintiffs' lawyers are paid fees of $5 million in 2 years.... The case was settled with an experienced and respected mediator. Yet the Fifth Circuit was quite concerned about the payment of legal fees and sent the case back to the District Court ... The Fifth's concern about payment of class counsel's fees may have been misplaced." [Jones v. Singing River Health Services Foundation, No. 16-60550 (5th Cir., revised July 27, 2017)]

How to Help Employees Weather the COVID-19 Storm (PDF)

"Here are two ways that go beyond the new small employer mandated leave time -- one at no cost to the employer, one with cost but more bang for the buck than paying wages.... [1] Let your employees share their leave time ... [2] Give your employees tax-free cash for their COVID-19-related expenses."

Longterm Disability, 'Un-Retirement' and Pension Plans

"It can take time to resolve an employee's claim for long-term disability benefits, especially in complicated cases.... An eligible employee may take an early pension without regard to disability.... [But] the employee can be substantially penalized for taking an early pension to pay bills when there's a delay in processing a long-term disability claim.... One possible solution is for the employee to try to 'un-retire' -- to retroactively cancel the pension."

Sure That Plaintiff You Settled With Won't Sue Again?

"You settle an employment dispute, pay a hefty amount to plaintiff, and get a broad release of claims. You won't have to deal with that plaintiff again, right? Maybe not. If you don't get the right release, that same plaintiff now can bring an ERISA lawsuit on behalf of her employee benefit plan."

Disability Benefits Claims May Settle Faster Under New Claims Procedures Regs

"If the plan administrator fails to strictly comply with the new rules, then the Labor Department has strongly suggested that any court review of a disability claim denial should be under a de novo standard.... In California, de novo review always will occur for litigated insured disability benefit claims. This is the case even if the new Labor Department rules are precisely followed by the plan administrator and if the plan is well drafted to give decision discretion to the plan administrator."

When Amending a Plan, Tell the Truth or Pay the Consequences

"The district court found that the communications to employees [about a 1996 modification of its pension plan to become a cash balance plan, causing a suspension of benefit accruals for four to five years for several thousand participants] were intentionally false and misleading ... You have to ask why this case did not settle. Well before trial, Foot Locker surely knew the facts were not favorable, and the plaintiffs also must have been concerned about serious legal issues.... There were legitimate limitations period issues. Compromise on technical actuarial factors (interest rates and mortality tables) might have been reasonable. The plaintiffs might have yielded on the windfall issue.... It might be difficult to find employment records back to 1996 ... But perhaps 'principle' took over.... This loss will cost Foot Locker [$180 million]." [Osberg v. Foot Locker, Inc., No. 15-3602 (2d Cir. July 6, 2017; cert. pet. filed Nov. 8, 2017)]