Many years ago, back when we were closer to the tipping point where 401(k) plans replaced pensions for the majority of employees, there was a great deal of discussion about whether employees could possibly be financially ready to retire at age 65 absent pensions. I argued at the time that the discussion was wrong and
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Why Insurance Is a Climate Activist’s Best Friend
I began writing on climate change as a litigation and insurance issue back in 2007 and have been writing on the role of insurance as a potential and actual driver of climate change policy since at least 2010. Since then, it has become clear that the single greatest corporate driver of changes intended to…
An Easy Read on the Past and Future of 401(k) Plan Litigation
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 in cheek, but that phenomenon is nobody’s fault: when I have written on the subject,…
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 a two to one split, favoring defense work. Personally, I like both types of work,…
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 Covid shutdowns did not trigger business interruption coverage in insurance policies, as most courts have…
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, even more than most, where you stand depends on where you sit. In other…
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, although whether the case will be the vehicle for complete abrogation of the doctrine is…
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 been able to get rich by “cherry picking” policies to underwrite, while leaving the riskiest…
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 other on the impact of nuclear verdicts on insurance coverage and bad faith issues, although…
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 three points: first, that large firms have been doing this for years but it is…