Identifying the Proper Party Defendant in ERISA Benefits Claims: A Circuit Survey
Identifying the proper party defendant in a claim for benefits under the Employee Retirement Income Security Act presents a surprisingly difficult task, and the correct answer depends upon the forum in which the lawsuit is brought. Faced with uncertainty as to the proper party, plaintiffs predictably take a “kitchen sink” approach to avoid missing a necessary defendant.
Plan sponsors, administrators, and insurers share responsibility by adopting unclear plan documents and participant communications. The result is frequent and costly motion practice as defendants seek dismissal of claims and sort out among themselves responsibility for the payment of benefits and costs of legal defense.
Change Must Come to the Business of Legal Education
On September 6th, a week after President Obama’s comment that “… law schools would probably be wise to think about being two years instead of three years,” we held a panel discussion at Brooklyn Law School to explore both the meaning and implications of this idea. President Obama’s comment was made during a tour of the Northeast. His goal was to highlight the need to make higher education more affordable for more Americans.
I moderated the panel that included James Silkenat, President of the American Bar Association; Presiding Justice Randall Eng of the New York Supreme Court, Appellate Division, Second Department; Anthony Crowell, Dean and President of New York Law School; and Michael Cardozo, Corporation Counsel for the City of New York, among others.
The ‘Rigorous Analysis’ Overlay on Current Class Action Jurisprudence
Without a doubt, the term “rigorous analysis” has become a buzzword in current class action jurisprudence. In recent years, the Supreme Court has issued landmark class action decisions in Wal-Mart Stores, Inc. v. Dukes and Comcast Corp. v. Behrend that further entrenched the phrase into the lexicon of class action practitioners. But do these most recent “rigorous analysis” decisions signal a sea change in class action jurisprudence? We think not. Rather, we see Comcast, Wal-Mart, and even a decision many observers consider an outlier, Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds, as a natural progression of the slow evolution of the class action device. This article describes that progression.
Historically speaking, we see judicial treatment of class actions under Rule 23 in terms of four distinct phases: the Innovation Phase (1966 to early 1970s), the Realistic Phase (mid-1970s to early 1980s), the Formalism Phase (early 1980s to 1995), and, most recently, the Rigorous Analysis Phase (1995 to present). Based on recent Supreme Court precedent, the Rigorous Analysis Phase is not going away anytime soon.
The 2008 Lacey Act Amendments and the Fight Against Illegal Logging
The worldwide fight against illegal logging gained a powerful new weapon in 2008 when the century-old Lacey Act was added to law enforcement’s arsenal. The Lacey Act now prohibits, among other things, trade in plants and plant products that have been taken, transported, or sold in violation of law, including the law of other countries. The 2008 Amendments to the Lacey Act also added a new requirement that importers must file a declaration detailing certain information about plants and plant products being imported, including the appropriate scientific name and country of origin.
While the underlying goal of the 2008 amendments—stopping illegal logging—enjoys almost universal support, some have voiced legitimate concerns that the amendments may end up imposing burdensome requirements or leading to unintended and unfair consequences. A House subcommittee recently held a hearing to discuss the impact of the amendments and to explore whether any legislative fixes are needed.
Just the RAC Facts: Controversial Program Roots Out Fraud, Waste in Medicare
Here are the facts: Medicare is one of the largest insurance programs in the United States, and every year it helps insure more than 49 million seniors and other beneficiaries. And, for a variety of reasons, its prognosis is anything but certain; estimates indicate that Medicare will be bankrupt by 2026.
Contributing factors include an aging baby-boomer population, technological advances in treatment that increase costs, as well as new legislation designed to reduce entitlement expenditures while increasing physician fees.
Planning for ‘Marketplace/Main Street’ Fairness: What Companies Can Do to Keep Ahead of the Curve
It is no secret that there has been a long-standing feud between the “brick and mortar” retailers, led by the megalithic Walmart, and the “online” retail giants, led by Amazon.com.
The battle is over what is “fair” when it comes to sales tax collection responsibility, and recently it seems that the brick and mortar bulwarks have achieved a major legislative victory. While some will celebrate that “fairness” has finally come about, the reality is that what is fair for big box brick and mortar retailers will have wide-ranging unintended consequences for many companies.
A National Infrastructure Financing Authority: Time to Act
For several years, Congress and the administration have debated the merits of a national infrastructure authority or bank to act as an infrastructure financing catalyst. However, as with so many other issues, Washington has failed to act. During those years of inaction, American infrastructure has continued to deteriorate.
Trends in M&A Provisions: Indemnification as an Exclusive Remedy
In merger and acquisition (“M&A”) transactions, the definitive purchase agreement (whether asset purchase agreement, stock purchase agreement, or merger agreement) typically contains representations and warranties made by the seller with respect to the target company. The scope and detail of these representations and warranties are often heavily negotiated and tailored to reflect both the nature of the target and its business, financial condition and operations, but also tend to reflect the relative negotiating strength of buyer and seller. Representations and warranties not only provide information to buyer, but also operate to allocate risk as between buyer and seller with respect to the matters covered by the representations and warranties.
View From McDermott: Dollars and Cents, the Cost of Benefit Coverage for Same-Sex Spouses and Partners
Many employers have begun the process of evaluating their options and obligations with respect to extending benefit coverage under employer-sponsored benefit plans to same-sex spouses in light of the U.S. Supreme Court’s recent ruling on Section 3 of the Defense of Marriage Act. Section 3 of DOMA provided that for all purposes of federal law the word “marriage” meant “only a legal union between one man and one woman as husband and wife,” and the word “spouse” referred “only to a person of the opposite-sex who is a husband or wife.” In June 2013, the Supreme Court ruled in United States v. Windsor1 that Section 3 of DOMA was an unconstitutional “deprivation of the liberty of the person protected by the Fifth Amendment.” The effect of this ruling is that federal law now generally will defer to state law definitions of marriage, including same-sex marriage, which has been legalized in 13 states and the District of Columbia.
What to Do When the Privacy Regulator Comes Knocking on Your Door? A Short Guide to Handling Inspections and Data Protection Audits in Europe
By Karin Retzer and Joanna Lopatowska, Morrison & Foerster LLP Inspections and data protection audits from regulators are on the rise across Europe, and this trend is likely to continue. The latest figures for 2012 show that the French data protection authority (Commission Nationale de l’Informatique et des Libertés or CNIL) completed 458 inspections, a 19 [...]
Canada and the United States Join Hands to Hunt Down Securities Fraud: Double Exposure for Companies and Their Executives?
Companies facing the recent surge of regulatory change in the United States, particularly under the Dodd-Frank Wall Street Reform and Consumer Protection Act, now may have Canadian regulators to worry about as well. On June 14, 2013, Canada’s largest securities regulator, the Ontario Securities Commission (“OSC”), announced that it has created a new division to criminally prosecute securities fraud, including activities like market manipulation, Ponzi schemes, and other illegal “boiler-room” activity. The OSC plans to develop a specialized unit to prosecute insider trading as well.
Viacom v. YouTube Postscript—Copyright Infringement, Social Media and the Blurred Lines of the Digital Millennium Copyright Act’s Safe Harbors
More than a year after the U.S. Court of Appeals for the Second Circuit’s seminal opinion in Viacom v. YouTube, the contours of copyright infringement liability in the social media space remain in flux. Viacom held for the first time that the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions are inapplicable to an online service provider that is willfully blind to facts indicating a high probability of copyright infringement because willful blindness is tantamount to actual knowledge of infringement. The handful of decisions since then have highlighted the gray legal areas that remain, among other things: Who bears the burden of proving actual knowledge or willful blindness, and what facts cross the line from mere general notice of infringement (which carries no corresponding duty or liability for service providers) to actual knowledge or willful blindness (which clearly does)? Focusing on social media, this article gives service providers and copyright holders a primer on the DMCA, the continuing saga of the Viacom litigation and the current state of DMCA play in the courts on actual knowledge and willful blindness. It also highlights the complicated, blurred lines these issues will continue to present to copyright litigants in the foreseeable future.
Beyond Knowles: Fairness to Absent Class Members And the Manipulation of Class Action Claims
The U.S. Supreme Court unanimously held March 19 in Standard Fire Insurance Co. v. Knowles, 133 S. Ct. 1345 (2013), that putative class counsel cannot avoid removal of a state case through a precertification stipulation purporting to limit damages to less than the federal jurisdictional threshold amount.
In Knowles, the plaintiff filed a class action in Arkansas state court against Standard Fire Insurance. The complaint stipulated that the class would seek less than $5 million in damages; this was an attempt to prevent the case from being removed to federal court under the Class Action Fairness Act (CAFA), which permits class actions to be removed when the aggregated amount of claims in the case exceeds $5 million.
Q&A with ACC Value Champion 2013: British Telecommunications
British Telecommunications (BT) has been named one of this year’s Association of Corporate Counsel (ACC) Value Champions. Value Champions are legal departments and law firms recognized for implementing client service models that deliver results while keeping efficiency high and costs low. BT’s winning innovation came about largely through the efforts of Chris Fowler, General Counsel [...]
How the FCC Can Protect Consumers in the Battle Over Retransmission Consent
For the past month, television viewers have been bombarded with news of the high-stakes showdown between CBS Corp. and Time Warner Cable Inc. over what are known as retransmission consent fees. On Sept. 2, the two companies finally ended their contract dispute, which had left millions of Time Warner customers in major cities—including New York, Los Angeles, and Dallas—without access to CBS’s broadcast stations and cable networks.
This type of pitched battle has become increasingly common as broadcast stations seek large cash payments from video distributors for the right to retransmit over-the-air broadcast signals.
Square Pegs Into Round Holes: Class Certification in GMO Food Products Cases
The class action is a potentially potent vehicle for attempting to effect behavioral change, and plaintiffs’ counsel have not been shy about using it creatively.
Nowhere is this more apparent than in the food industry context, where one of the hottest trends is the filing of class actions against manufacturers of food products on behalf of consumer classes claiming to have been deceived by product labeling.
Same-Sex Marriage and ERISA in the Windsor Era
The Supreme Court’s landmark ruling in United States v. Windsor,1 invalidating Section 3 of the Defense of Marriage Act (DOMA) , marks a dramatic shift in our legal system’s treatment of same-sex couples. By invalidating Section 3′s restriction on federal government recognition of same-sex marriage, Windsor returns the determination of spousal status to the states and ensures equal treatment for state-law-recognized same-sex spouses with respect to employee benefits matters, including pension survivor benefits, qualified domestic relations orders, the tax treatment of health and welfare benefits, plan rollovers, and more.
Ponzi Schemes and Banks: Positive Trends in Tort Law
The financial crisis brought with it the exposure and collapse of hundreds of Ponzi schemes,1 many of them headline news over the past five years. Scrambling to recover their lost investments, defrauded investors have turned to the courts. And with the shell companies run by the Ponzi scheme perpetrators typically bankrupt, victim-investors have pointed the finger elsewhere: at the banks where the perpetrators held accounts. The logic goes (according to these investors) that whatever tort the Ponzi schemer committed, the bank was liable for aiding and abetting by way of the banking services that it provided. Plaintiffs have also attempted to hold banks liable on other tort-based theories such as negligence, conspiracy, and conversion.
The Elephant in the Room: Contingency Fees and the Future Of Coupon Settlements After In re HP Inkjet Printer Litigation
In class action litigation, attorneys’ fee awards are the bane of defendants’ existence, the salt in the open wound. Defendants have to pay for their own counsel, and then, if they elect to resolve a case via settlement, they are on the hook not only for the costs of settlement, but plaintiffs’ fees as well!
The way to avoid this result is to eschew class settlements. Indeed, many companies openly espouse a “never settle” philosophy, and for good reason. The reputational hit to a company-turned-defendant is often substantial, especially in consumer cases. Many consumers believe that a settlement reflects a tacit admission of wrongdoing by the company or an acknowledgement that a product is, in fact, somehow defective. Companies rightly factor these intangible costs into their analyses when making strategic litigation decisions. When a company obtains a dismissal of a class lawsuit or defeats class certification, it feels like what it is: a victory, a degree of vindication.
PART II of II A Policyholder’s Guide to Insurance Coverage for “Cyber” Events
Insurance policies are as varied as the risks they address, from ordinary commercial general liability coverageto more exotic coverages such as political risk insurance or warranty and indemnity contracts. However, with respect to the risks commonly associated with a “cyber event,” three traditional coverage types are relevant: liability insurance, property insurance, and crime/fidelity insurance.