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About Stephen D. Rosenberg

Stephen Rosenberg, Of Counsel in the Boston office, is admitted to practice in the Commonwealth of Massachusetts, the United States District Court for the District of Massachusetts, and the United States Court of Appeals for the First Circuit.

  

Steve has represented clients in litigation in federal courts, state courts, commercial arbitrations and administrative tribunals in a variety of jurisdictions throughout the country, and has represented clients in non-litigation matters involving insurance coverage in almost every jurisdiction in the country. He has won - and lost - jury and bench trials, and prevailed on summary judgment and other motions involving a wide range of commercial, intellectual property, contract, ERISA, tort, bad faith, and insurance coverage issues.  Click here to read more about Steve Rosenberg

  

 

 

 

The Wagner Law Group

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 

 

Established in 1996, The Wagner Law Group has 22 attorneys engaged exclusively in employee benefits, estate planning and employment law. Six of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.

 

 

 

 

 

Contact Info

The Wagner Law Group

 

  Integrity | Excellence

  

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Tel: (617) 357-5200 

Fax: (617) 357-5250 

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Fax: (314) 236-5743
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September 4, 2015 

 

ERISA Law Newsletter

 

 

 

 

 Defensive Plan Building, Otherwise Known as "Minimizing Legal Risks in the Design, Implementation and Administration of Employee Benefit Plans"

 

From the blog of Stephen D. Rosenberg

 

 

 

I can't even recall how many times I have written - on this blog and elsewhere - on what I call "defensive plan building," which is the idea that plans should be designed, built out and operated with the risk of litigation and liability exposure carefully considered and planned for, with the goal of eliminating as many risks as possible. The idea is to think - not after being sued but when a plan is written, a vendor selected, funds chosen, an investment committee put together, and the like - how best to limit the liability risks of the plan sponsor and the plan's fiduciaries.

  

Here's an easy example. A couple of weeks ago I spoke on a Strafford webinar on the duty to monitor plan investments after the Supreme Court and the Ninth Circuit's rulings in Tibble. One of my slides concerned a favorite topic of mine, which is the risk of corporate officers who are not directly involved in a plan's operations being dragged into a dispute over the plan on the ground that they are functional fiduciaries of the plan (how this can happen, how it can be avoided, the status of the law on this issue under a wide variety of fact patterns, and the creativity of plaintiffs' lawyers with regard to this issue are a subject for another day, one that perhaps warrants an entire article). Often, such officers and executives were not directly involved with the plan and, moreover, did not understand themselves to be occupying a role that could expose them to liability for the plan's operations based on a claim that they were functional fiduciaries. As I explained in my presentation, getting dragged in this tangential way into class actions brought against a plan is not a good use of a senior executive's time and focus, and likely not good for the longevity of the lawyer who designed the plan in a way that left a senior officer at risk of being named a defendant in such a claim. The point of "defensive plan building" is to look ahead at risks like this and design the plan in such a way that this doesn't occur by accident, by insulating such senior officers from involvement that could drag them in as defendants. Multiply this by a thousand fold, concerning all of the other exposures that a plan can bring, and you have the idea of "defensive plan building:" look ahead when building and operating a plan at your potential exposures, and avoid the ones you want to avoid.

  

Now this is all nice as a theory, but there is no doubt it is hard to pull off. Plans are amazingly complicated machines, with a thousand moving parts. Worse yet, new theories of liability arise all the time, and one cannot predict whether certain actions taken today will run afoul of theories of liability crafted in the future. Just look, for instance, at excessive fee cases: the cost of funds certainly wasn't on the radar screens of most plan sponsors and their lawyers several years ago, but it would be negligent of them to ignore those costs in designing a plan today.

  

I will have more of an opportunity to expand on this idea in November, when I will be speaking at the American Conference Institute's conference on plan compliance issues in New York. The actual title of the conference is "Minimizing Legal Risks in the Design, Implementation and Administration of Employee Benefit Plans," which could almost serve as a definition for the term "defensive plan building." Peter Kelly, who is the Deputy General Counsel of Blue Cross and Blue Shield Association, Ed Berrios of Chubb and I will be speaking as a panel on fiduciary liability and employee benefit risks, and dozens of others will be speaking on a range of other issues central to operating a well-run plan. Please click here for information and to register for this event. 

  

  

To view Steve Rosenberg's blog, click here.

 

 

 

This Newsletter is protected by copyright. Material appearing herein may be reproduced with appropriate credit.

 

This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.