Analysis Group Consultants Contribute ERISA Scholarship to ABA Business Law Compilation

August 27, 2020

The Business Law Section of the American Bar Association (ABA) has published the 2020 edition of its annual compilation Recent Developments in Business and Corporate Litigation. Analysis Group consultants contributed to two entries in the ERISA chapter of this year’s edition.

Managing Principal D. Lee Heavner, Principal Mark Gustafson, Vice President Peter Rybolt, and Manager Phil Hall-Partyka coauthored the “ERISA Litigation Involving Health and Welfare Plans” section of the ERISA chapter. Their section provides an overview of ERISA litigation involving US group health and welfare plans. The authors note that to date, this litigation has focused primarily on administrative costs, such as claims adjudication and hired consultants. The authors then review four recent cases that had developments: two involving allegations of excessive health care plan administrative costs, one regarding class certification, and one involving allegations of premium overcharges. The authors conclude that these developments may indicate that ERISA litigation could increasingly focus on welfare plans.

Dr. Heavner also coauthored, with Lisa S. Brogan, “Back to School – Three Years Later: An Update on University Retirement Plan Litigation.” This entry reviews their past contributions to the compilation, which traced the history of 401(k) and 403(b) retirement plans and provided an overview of ERISA cases filed against universities alleging breach of fiduciary duties with respect to these plans. In the new chapter, Dr. Heavner and Ms. Brogan explore developments from 2019 that offer clues as to whether courts will measure fiduciaries’ duties of loyalty and prudence in the context of 403(b) plans, or will instead treat them as 401(k) plans. In addition to revisiting the one case that has gone to trial and others that have been dismissed, they examine several noteworthy settlements from 2019, as well as significant activity in the US District Court for the Southern District of New York. From the orders and opinions in these cases, the authors analyze the trends and issues that continue to evolve around university retirement plans.

Recent Developments in Business and Corporate Litigation, 2020 Edition is available for sale on the ABA’s website.