UpFront | Published in June 2017

Well-Versed ERISA Litigators

Due diligence required

By Rebecca Moore | June 2017
If you’re a retirement plan sponsor facing an Employee Retirement Income Security Act (ERISA) lawsuit, you want an attorney well-versed in your type of ERISA case, but you may also want an attorney with some “insider” information.
Jamie Fleckner, a partner with Goodwin Procter LLP in Boston, says what judge is assigned to the case may have an impact on how litigators defend it and the strategy they employ in litigating. For example, if a judge’s tendency is to not grant dispositive motions, as a litigator thinks about case strategy, he may make a strategic or tactical decision as to whether or not to file such a motion—i.e., one to dismiss or for summary judgment.
Fleckner says knowing how much time a judge is expected to take with a case is critically important in managing client expectations. “Plan sponsors that find themselves in litigation will want to know the life cycle of the case and when next steps will occur, so they can plan accordingly and know what to expect.”
Regarding appellate outcomes, Fleckner says, “You always, as a litigator, think about potential appellate remedies and making sure you’re preserving a record of appeal.” He adds that there are broad strokes in a judge’s past—though, certainly any case on its own might be an outlier—so litigators would have to carefully compare a judge’s tendencies with their particular case.
“But you certainly want to understand how strong an appellate case you have, as you think about the strategy of your case overall,” he adds. “Do you have a strong ground for appeal? If the judge has been successfully appealed, or if the judge has often upheld a ruling on appeal, you have to think about whether the appellate path will be successful.”
He notes that local counsel can help a litigator understand a judge’s preferences and tendencies even if they themselves do not litigate ERISA cases. An alternative to the due diligence that Fleckner suggests plan sponsors and their litigators undertake, pre-trial, is the Bloomberg Law Litigation Analytics fee-based tool, which provides extensive information on the litigation activities of companies, as well as the law firms that represent them.