This is a great story in Plan Adviser on the past and future of ERISA litigation over 401(k) plans. It’s a fun and short read, neither of which is normally true of articles on this subject. That’s a little tongue
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In Praise of Juries
I have somehow managed to escape the trap many litigators find themselves in, of being almost exclusively a plaintiff’s lawyer or instead a defense lawyer. Over the past 35 years, I would guesstimate my practice has totaled out to about…
Business Interruption Insurance, Covid and How to Win a Coverage Case
I didn’t want the week to end without passing along this story from Massachusetts Lawyers Weekly on the First Circuit’s decision in Lawrence General Hospital v. Continental Casualty Company. In the decision, the First Circuit reaffirmed the principle that…
What Does Arbitrary and Capricious Review Really Mean, Anyway?
It’s very difficult to write with any nuance about discretionary review under ERISA plans, or what is more typically referred to as “arbitrary and capricious review.” I believe it is because it’s one of those areas of the law where,…
Chevron, Little Fish and ERISA
The Supreme Court today hears argument in a case concerning many politicians’ and lawyers’ favorite pinata, the Chevron doctrine. It would likely be naïve to believe that the case won’t at least further restrain agency authority and discretion,…
The Interrelationship of the Two “M”s – Moral Hazard and Marx – in Florida’s Insurance Market
This is a great story from over the holidays that I wanted to pass along, which touches on many issues in the current insurance environment. It’s a story of how insurance industry insiders in the Florida homeowners coverage market have…
Generative AI, Nuclear Verdicts and Insurance Bad Faith: My Takeaways from DRI’s Insurance Coverage and Practice Symposium
As usual, I had a terrific experience at DRI’s annual Insurance Coverage and Practice Symposium in midtown Manhattan, which was held last week. I had gone in many ways simply for two particular presentations, one on generative AI and the…
On the Art of Contingency Fee Representation in a Billable Hour World
This is a terrific article by Crowell and Moring’s Paul Haskel on the use of alternative fee arrangements, particularly contingency fee arrangements, by large law firms to supplement the revenue generated by traditional billable hour defense work. The author makes…
The Tell-Tale Settlement Valuation, or Poe Takes On Insurer Bad Faith
This is a very interesting tale about an unusual outcome that shouldn’t actually be all that unusual. I know – with that lead in, now you may be expecting some sort of Edgar Allan Poe tale, like “The Tell-Tale…
The Human Vacuum Cleaner and the Pension Surplus
It’s interesting. I spoke in my last post about the possibility of using ERISA and employee benefits to alter the course of economic inequality, referencing that pensions might be a better choice to accomplish that but they aren’t coming back.…