Expert Analysis

• Garmon Defense Finds New Relevance As NLRB Stays Active

  

  With a more muscular National Labor Relations Board at work, employers should recall that they have access to a powerful yet underutilized defense to state law employment and tort claims established under the U.S. Supreme Court decision in San Diego Building Trades Council v. Garmon, say Alex Meier and Cary Reid Burke at Seyfarth.

• The Important Role Of Contra Proferentem In ERISA Cases

  

  A Pennsylvania federal court's recent decision in Stein v. Paul Revere Life Insurance illustrates what happens when ERISA plan terms are unclear, and why the contra proferentem principle should be applied uniformly in all ERISA cases, says Mark DeBofsky at DeBofsky Law.

• Practical Skills Young Attorneys Must Master To Be Happier

  

  For young lawyers, finding happiness on the job — with its competitive nature and high expectations for billable hours — is complicated, but three skills can help them gain confidence, reduce stress and demonstrate their professional value in ways they never imagined, says career counselor Susan Smith Blakely.

• No Surprises Act Gives Plan Sponsors Savings Opportunities

  

  Under the No Surprises Act, the potential savings for an ERISA group health plan and its participants are significant, and sponsors should focus on the negotiation of third-party administrator service agreements to avoid exposure to breach of fiduciary claims for payment of excessive fees, say attorneys at Hall Benefits.

• ABA Opinion Should Help Clarify Which Ethics Rules Apply

  

  A recent American Bar Association opinion provides key guidance on interpreting ABA Model Rule 8.5's notoriously complex choice-of-law analysis — and should help lawyers authorized to practice in multiple jurisdictions determine which jurisdiction's ethics rules govern their conduct, say attorneys at HWG.

• 5 Potential Perils Of Implementing Employee Sabbaticals

  

  As companies try to retain employees with sabbatical benefits amid record-low unemployment rates, employers should be aware of several potential legal risks when considering policies to allow these leave periods, say Jesse Dill and Corissa Pennow at Ogletree.

• 4 Ways To Reboot Your Firm's Stalled Diversity Program

  

  Law firms that have failed to see real progress despite years of diversity initiatives can move forward by committing to tackle four often-taboo obstacles that hinder diversity, equity and inclusion efforts, says Steph Maher at Jaffe.

• DOJ's Google Sanctions Motion Shows Risks Of Auto-Deletion

  

  The U.S. Department of Justice recently hit Google with a sanctions motion over its alleged failure to preserve relevant instant-messaging communications, a predicament that should be a wake-up call for counsel concerning the danger associated with automatic-deletion features and how it's been handled by the courts, say Oscar Shine and Emma Ashe at Selendy Gay.

• What To Expect From A Litigation Finance Industry Recession

  

  There's little data on how litigation finance would fare in a recession, but a look at stakeholders' incentives suggests corporate demand for litigation finance would increase in a recessionary environment, while the number of funders could shrink, says Matthew Oxman at LexShares.

• Preparing For DOJ's Compensation Clawback Pilot Program

  

  The U.S. Department of Justice’s new pilot program incentivizes clawbacks and requires corporate resolutions to include compensation reform, effectuating the agency’s recent emphasis on individual accountability, so companies must take immediate steps to update their compliance programs, say attorneys at Morgan Lewis.

• ACA Anti-Discrimination Rules May Apply To 3rd-Party Admin

  

  A Washington federal court's recent ruling in C.P. v. Blue Cross Blue Shield, where a third-party administrator applied plan rules that excluded gender-affirming care, potentially expands the scope of covered entities under the Affordable Care Act's anti-discrimination rule, say Kara Backus and Allison Jacobsen at Lane Powell.

• ERISA Considerations In A Dynamic ESG Landscape

  

  Recent congressional, judicial and state legislative developments have complicated the landscape surrounding environmental, social and governance investing, but these new laws and court challenges are unlikely to ban any consideration of ESG in ERISA plans and will likely serve to hone fiduciary focus, say Elizabeth Goldberg and Rachel Mann at Morgan Lewis.

• The Limits Of Arbitration Provisions In The ERISA Context

  

  Although courts have viewed the Federal Arbitration Act as strongly favoring the enforcement of arbitration provisions, two recent decisions from the District of Delaware and the Tenth Circuit demonstrate that arbitration provisions that expressly forbid planwide relief are not likely to be enforced in ERISA cases seeking such relief, says Elizabeth Hopkins at Kantor & Kantor.

• Justices Leave Questions Open On Dual-Purpose Atty Advice

  

  The U.S. Supreme Court's recent dismissal of In re: Grand Jury on grounds that certiorari was improvidently granted leaves unresolved a circuit split over the proper test for deciding when attorney-client privilege protects a lawyer's advice that has multiple purposes, say Susan Combs and Richard Kiely at Holland & Hart.

• Opinion

  Courts Should Follow 8th Circ. On ERISA Procedure Rules

  

  Other courts should take note of the Eighth Circuit's refusal to view Yates v. Symetra Life Insurance as an administrative law claim and join the growing effort to restore regular civil procedure to Employee Retirement Income Security Act cases, says Mark DeBofsky at DeBofsky Law.