Growing up in Baltimore in the Seventies (you can take the boy out of Baltimore but you can’t take the Orioles out of the boy – go Birds!), I developed a love of horse racing, back in the heyday of Pimlico racetrack and the Preakness. I still remember watching Secretariat run the second leg of the Triple Crown there and the pre-race hype about Seattle Slew a few years later. Horse racing is a lot like lawyering – it has its problems, but it can be a beautiful thing to watch when it’s done right, as it was this past Saturday at the Kentucky Derby. Among its other virtues, horse racing is a wond ..read more

I suspect every client I have ever represented in litigation can testify that I am overly fond of the old saying if you have the facts, argue the facts; if you have the law, argue the law; and if you have neither, jump up and down and scream. In my view, most of the time, you are better off having the facts on your side then either the law or a good scream. This is because it is a relatively rare case where the controlling legal principles are so clear and unambiguous that a good lawyer, holding a good poker hand of facts, cannot get around a body of law running against his or her client. I co ..read more

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 that the age 65 attribution for this analysis was archaic and distorted the conversation. I was correct about that, and the realities of the interaction between retirement funding and pushing retirement dates back a decade are now a mainstream topic, as this excellent article from ..read more

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 avoid the worst impacts of climate change will be the insurance industry. As I explained here and here (among other posts), the substantial economic impacts and financial losses that will result from climate change will pass through the insurance system first, making climate issues central to ..read more

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, I have an awful lot of trouble reining in the word count. At its core, the article presents the question of whether the long and highly contentious history of this area of litigation has actually benefited participants. There are three points from it that I wanted to touch on. First, a defense lawyer ..read more

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 held to date. The Court did, however, find coverage under a different portion of the relevant policy, which expressly provided “disease contamination coverage.” The coverage, policy language and economic issues at play in the question of ..read more

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 words, if you are a plan administrator or sponsor, or a lawyer representing one, you think it describes a standard of review that should broadly insulate plan decisions from challenge, while if you are a plan participant, or a lawyer who represents plan participants, you think the entire doctri ..read more

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 beyond my tarot card reading powers. Robert Steyer addresses what this development likely means for the retirement industry and ERISA governed entities in an excellent article in Pensions & Investments, titled “Industry Eyes High Court on Chevron Deference.” As ..read more

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 properties to be protected by taxpayers. It’s also a story about moral hazard and the extent to which proactive action in the face of the economic risks posed by climate change in areas vulnerable to sea rise and weather pattern changes is undercut by the assumption that ..read more

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 other presentations were informative and had value as well. The AI presentation, ably presented by Lewis Wagner’s Meghan Ruesch and Melissa Fernandez of Travelers, was oriented towards the question of how AI would impact insurance, with discussion of new claims against ..read more