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A Case Study in ERISA and Employee Classification Issues (PDF)

"Plaintiffs' attorneys have worked to craft theories that combine compensation-based claims under employment laws like the FLSA with claims under ERISA's statutory provisions into a one-two class action punch.... If successful, this approach has the potential to increase damages for FLSA violations and graft ERISA's fiduciary requirements onto daily employment decision... [A federal District Court recently] concluded that there is no private right of action specifically to enforce ERISA's record-keeping requirement, and that [the employee's] attempt to characterize the claim as one for 'catch-all' relief under ERISA Section 502(a)(3) failed because she was seeking monetary, rather than equitable, relief." [Lytle v. Lowes Home Centers, Inc., No. 8:12-cv-1848 (M.D. Fl. April 29, 2014)]

Jury Trials in the ERISA Context: An Anomaly or a Trend? (PDF)

"Recently ... a court in the U.S. District Court for the District of Connecticut joined the U.S. District Court for the Southern District of New York to buck the weight of authority and allow for a jury trial for at least some ERISA claims. These cases raise the question of whether there has been a meaningful shift in how courts view fiduciary breach claims or whether these cases are outliers, and why."

Early Returns on Actuarial Equivalence Cases (PDF)

"The plaintiffs in these cases contend that the calculation methodology employed ... results in inappropriately low benefit payments, typically because mortality tables used in the calculation are alleged to be outdated.... In the first two decisions on motions to dismiss these lawsuits, federal district courts for the District of Minnesota and the Northern District of Texas have concluded that two different sets of claims are sufficient to survive past the pleadings stage. These rulings all but guarantee that more similar complaints will be filed."

New Plaintiffs' Firms Bring Increased ERISA Litigation Risks for Employers (PDF)

"Until recently, a small group of specialized plaintiffs' firms has dominated the ERISA class action space, beginning with untested theories of liability that are eventually leveraged into portfolios of lawsuits. Those portfolios (and the plaintiffs' attorneys who created them) have become well-known. But an interesting trend has emerged in the day-to-day ERISA litigation docket: new plaintiffs' firms have begun to enter the space in a significant way. This development, which has significant implications for plan sponsors and fiduciaries, has been picking up significant speed in the last several months."

The ERISA Uncertainty Principle: Edmonson v. Lincoln National Life Insurance Company and ERISA's Unanswered Questions (PDF)

"ERISA at 40 is showing the kind of identity crisis that might signal an impending mid-life crisis. The petition underscores the substantial uncertainty that continues to surround the statute despite the significant judicial interpretation the federal courts have applied to its provisions over the last 40 years.... [It] raises two fundamental questions about the extent of ERISA's reach. First, who is subject to ERISA's fiduciary obligations? And, second, when are benefits due under an ERISA plan no longer plan assets subject to the statute?" [Edmonson v. Lincoln National Life Ins. Co., No. 12-1581 (3d Cir. Aug. 7, 2013; cert. denied May 19, 2014)]

The 'Defensive' 401(k) Plan (PDF)

"The Roberts Court's ERISA jurisprudence has re-awakened the idea that one of ERISA's key tenets is that a plan's written terms matter.... This column identifies some ways in which plan sponsors can amend plan language to manage and/or mitigate exposure to claims for benefits and other ERISA claims."

Fee Awards Under ERISA: The Long and Winding Road to 'Some Success on the Merits' (PDF)

"The [Supreme Court] found that attorneys' fees may be awarded if a party obtains 'some degree of success on the merits.' As is its prerogative, the Court did little to elucidate this standard... [A recent Ninth Circuit] decision and the dis­trict court's handling of two separate fees requests by both parties demonstrates just how lenient the 'some success' standard can be when applied to plaintiffs, and how that leniency can evaporate when the party seeking fees is the defendant." [Brasley v. Fearless Farris Service Stations, Inc., No. 16-35519 (9th Cir. Mar. 13, 2018, unpub.)]

What Happens After Breach of Fiduciary Duty Claims Stemming from Denials of Benefits Survive a Motion to Dismiss? (PDF)

"Following the U.S. Supreme Court's decision in CIGNA Corp. v. Amara, plaintiffs have argued, with some success, that ERISA breach of fiduciary duty claims under ERISA Sections 502(a)(2) and (a)(3) may proceed alongside claims for benefits under ERISA Section 502(a)(1)(B) that seek the same relief.... One recent decision ... provides useful insight on how courts approach residual breach of fiduciary duty claims ... after dismissing a claim for benefits ... It demonstrates that, even where a court permits a breach of fiduciary duty claim to outlive a claim for benefits, plaintiffs still may have difficulty establishing an actionable fiduciary breach in the typical claim for benefits context." [O'Rourke v. Northern California Electrical Workers Pension Plan, No. 16-2007, (N.D. Cal. Nov. 2, 2017)]

District Court Decision Creates More Uncertainty for ERISA Co-Fiduciaries on Contribution Claims (PDF)

"[T]he court viewed ERISA's silence on contribution among co-fiduciaries to allow it to identify a federal common law right based on its belief that that right was not inconsistent with ERISA's structure and intent.... [The] ongoing divide [among the circuit courts of appeal] over the power of federal courts to supplement ERISA's express terms may have wide-ranging effects on ERISA's provisions and remedies that go far beyond the question of contribution among co-fiduciaries." [Guididas v. Community National Bank Corp., No. 8:11-cv-2545-T-30TBM (M.D. Fla., Nov. 5, 2012)]

Arbitration of ERISA Claims: Courts Grapple with Competing Considerations (PDF)

"[Two federal circuits] have reached opposite conclusions regarding whether ERISA claims may be subject to arbitration where the arbitration clause is contained in the governing plan document. This column [reviews those decisions and] the respective arguments that may determine whether or not arbitration of ERISA disputes remains a viable avenue for plans sponsors."