An ERISA Defense Conference with Nine “Renowned Federal Judges”

Filed in Ethics by on August 10, 2010 5 Comments
A mosaic, "Law." Fredrick Dielman (1847-1935)

A mosaic, "Law." Fredrick Dielman (1847-1935)

On Health Reform Watch we’ve written quite a bit about transparency, accountability and gifts as it regards Pharma and Physicians. I saw this today on Illness and Insurance Hell, a rather wide ranging and interesting blog devoted to procuring assistance to a spouse with multiple sclerosis. The author takes a macro view, however, and this wound up in her web: A conference held, it seems, yearly now, in October:

“ERISA LITIGATION: Expert defense strategies for leading outside counsel and in-house counsel on litigating today’s key issues involving benefit plans and fiduciaries”

For those of you who don’t know, ERISA stands for the Employee Retirement Income Security Act of 1974. (Pub.L. 93-406, 88 Stat. 829, enacted September 2, 1974. Erisa is a

federal statute that establishes minimum standards for pension plans in private industry and provides for extensive rules on the federal income tax effects of transactions associated with employee benefit plans. ERISA was enacted to protect the interests of employee benefit plan participants and their beneficiaries by requiring the disclosure to them of financial and other information concerning the plan; by establishing standards of conduct for plan fiduciaries; and by providing for appropriate remedies and access to the federal courts.

There can be major implications for worker benefits, including  health care benefits, in cases brought against employers under ERISA. It is a complex area of law, to say the least. And it is entirely understandable that those charged with the oversight of such plans, should want to meet to discuss how best to discharge their complex duties; how best to comport themselves in a manner in accord and compliance with law; how best, as is their duty if they are attorneys, to zealously represent their clients.

The conference provides a veritable smorgasbord of effective strategies and interesting panels presented by what seems  to be a truly stellar faculty of practitioners:

Senior in-house counsel, top outside defense litigators and renowned

jurists will provide you with winning strategies and practical information on:

  • Preventing improper parties from being named as defendants and identifying available remedies

under §502(a)

  • Using the claims review process to set up, control and strengthen the defense
  • Effective strategies to strengthen the administrative record and memorialize the decision-making


  • Addressing evidence outside the administrative record, standards of review, conflicts of interest

& discovery once a suit is filed

  • The newest theories of liability in 401(k) fee cases and what to do when your plan discovers it has

paid unknown fees

  • Defending against stock drop suits and other defined contribution plan claims
  • Tibble v. Edison: the trial, theories of the defense, selection of experts, and other practical insights
  • ERISA fiduciary litigation: The newest plaintiffs’ liability theories, substantive defenses and trends

in defense pleadings and motions

  • How to structure your fiduciary’s role to minimize risk
  • Underwriting of fiduciary liability insurance and strategic ideas for litigating and settling cases

when a fiduciary (and their insurance plan) is involved

  • Judicial communication: Explaining plan documents and ERISA nuances to the court
  • New areas of liability as a result of healthcare reform
  • ERISA preemption – the procedural and substantive aspects of the defense
  • Defending against age-based and other “recessionary economy” ERISA claims: Cash balance plans,

early retirement, reductions in force, multi-employer plan funding and beyond

If you’re a law geek (I am), a legal practitioner in this area of the law, a representative of an insurer, or a member of a corporation bound by these laws, this conference looks absolutely fascinating (click here, for an overview, download pdf for the full view). And I have no doubt that attendance will be rewarded with a great deal of newly acquired knowledge and an important grasp of methodology. But the faculty also includes nine “renowned federal judges,” who “will help you convey ERISA complexities to a court.”

Having had the benefit of a legal education, I have some idea of the complexity of the matter at hand ( a quick look here will give you some idea as well)  and can fully understand how judges would want to educate practitioners defending claims so as to better execute and expedite the process.  A case, court system or retirement plan riddled with ignorance is in no one’s best interest. And a knowledge of the law enables compliance with the law.

But I would suggest, humbly, that it just doesn’t look good.  It is, after all, a conference designed to “defend against” ERISA claims. I would be at least somewhat surprised if these federal judges were speaking at a conference for impoverished workers who were deprived of their retirement benefits. If am wrong, I am gladly so. And one could make the case that the many federal judges who teach as adjuncts at law schools across the United States are doing just that–taking time out of an arduous schedule to teach law, compliance and process to what will be both defense and prosecution– because we all benefit from an effective legal system. But this conference seems a bit more–or less– than that; at least in the eyes of smart non-lawyers like the author of Illness and Insurance Hell. To her it just looks like “the fix is in.” Like Big Money is courting the Law and those inviolable robes, the buttresses of justice, have shown a slip. I have a great deal more faith in the Law than that. I capitalize the word without apology. And I have no doubt that this is just a matter of appearances–and that appearances can be misleading. But despite my efforts here, I really don’t think she, who has struggled in the legal system against an insurer to get medical help for her very sick husband, and people like her, will believe me. Or the judges. And that’s a problem.

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  1. Michael Ricciardelli says:

    Thank you Ms. Paez for bringing the conference to my attention and for your thoughtful response. In a democratic society with an independent federal judiciary, faith in the legal system is absolutely key. Even the appearance of impropriety is to be avoided at almost any cost. It is hard to reconcile such with that conference. I would imagine that those judges who will not be attending have considered it in that light– and rightfully so.

  2. You are very correct, Mr. Ricciardelli, I have lost all faith in the system especially in light of that conference.

    Our attorney at the time we decided to go ahead and file, (we changed our minds when CIGNA started sending out people to photograph us, and our children, at our home) explained how it’s all stacked against us anyway since ERISA is written so vaguely and open to interpretation. Does having the misfortune of contracting an incurable disease like MS make one criminal, a person to be photographed for the court, caught doing what? Living?

    And so, when I see this conference with federal judges in attendance, I don’t believe it is just appearances and appearances can be misleading. It’s more insidious than that and I believe that the drop in attendance of federal judges from 21 last year to 9 this year may make my case.

    And thank you for highlighting this. It is much appreciated.

    -Margaret Welman Paez

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