Search the News Archive

Secunda on [No] ERISA Remedies

"Paul Secunda (Marquette) has just posted on SSRN his article (forthcoming Hofstra LELJ), Sorry, No Remedy: Intersectionality and the Grand Irony of ERISA. Here's the abstract: Congress enacted the Employee Retiree [sic] Income Security Act of 1974 (ERISA or Act) to protect employees' retirement and welfare benefits. Nevertheless, the Act has been interpreted by the U.S Supreme Court over the years to be in essence an Employers' Security Act, with employers using ERISA to shield themselves against employee benefit-related claims."

Secunda on Wisconsin's Public Union Bill

[Professor Paul Secunda also questions] whether this really has anything to do with the state budget--a question that has particular weight given that the governor just last month pushed through a large tax break package.

Analysis of the Oral Transcript in the LaRue ERISA Case

Excerpt: [T]he case may shine much needed light on the scope of relief available to employees under Sections 502(a)(2) and 502(a)(3) of ERISA. Below are my initial thoughts on the oral argument today in the case based upon an analysis of the oral transcript. (Full disclosure: I was one of eleven law professors who signed an amicus brief supporting LaRue's opposition to DeWolff's motion to dismiss. I hope, however, that this fact does not cloud my analysis of the oral argument).... I predict a 6-3 decision for LaRue[.]

Supreme Court Accepts Cert in Dudenhoeffer ERISA Moench Presumption of Prudence Case

"The case law had been trending in favor of the presumption of prudence in these stock-drop cases in recent years, with the Sixth Circuit being a notable exception.... [G]iven that the Court granted [certiorari] on the question as presented by the company (and did not re-write the question as requested by the Solicitor General), we may gain some insight.... Phrasing the question presented in such a leading manner suggests only one possible reasonable answer: upholding the presumption of prudence in ERISA stock drop cases."

Sixth Circuit Finds ERISA Section 502(a)(3) Remedy for Wrongful Denial of Benefits May Include Disgorgement of Profits

"The debate going forward is whether the Supreme Court's Varity case allows this outcome. That case stands for the proposition that where a plaintiff has a remedy for benefits under 502(a)(1)(B), a remedy on the same claim cannot be had for breach of fiduciary duty under 502(a)(3), as 502(a)(3) is only supposed to apply if no other provision does. It is the catch-all. Here, the court says essentially these are two different claims so Varity does not apply. It also says that the disgorgement sum of $3.7 million dollar is the appropriate remedy given the size of the benefit denied (almost $1 million disability claim), the time elapsed, and the fact that the benefit owed was commingled with other insurance company monies." [Rochow v. LINA, No. 12-2074 (6th Cir. Dec. 6, 2013)]

Amicus Brief of Law Professors in Support of Respondents, Conkright v. Frommert

Excerpt: One of the Supreme Court's labor and employment cases this term is Conkright v. Frommert, which addresses the question of whether a court must continue to give deference to a plan administrator's interpretation of a pension plan after the first interpretation has been found to be arbitrary and capricious under Firestone. Our very own Paul Secunda, along with eight other professors, have just filed an amicus brief in the case on behalf of the respondents/employees (go here to download Law Professors' Conkright Amicus Brief in Support of Respondents).

Employee Misses FMLA Coverage Threshold by 12 Minutes

Excerpt: Our own Paul Secunda sent me the BNA report on this FMLA case. It's a doozy. Late last week, the Seventh Circuit issued an opinion in Pirant v. U.S. Postal Services, considering whether the employee there was covered by the FMLA.

ERISA Abroad: Extraterritorial Application of ERISA to U.S. Employees in other Countries

Excerpt: Paul Secunda ... has just posted on SSRN his article 'The Longest Journey, with a First Step': Bringing Coherence to Sovereignty and Jurisdictional Issues in Global Employee Benefits Law.