LLC managers often enjoy wide latitude and unrestricted “discretion” under the LLC’s operating agreement. At the same time, all contracts — including LLC operating agreements — are subject to the implied covenant of good...more
In a short order issued last week, the North Carolina Supreme Court narrowly voted to vacate a Court of Appeals’ opinion in connection with dismissing an appeal on mootness grounds. Well, I said that the order was short, but...more
The U.S. District Court for the Northern District of Illinois, Eastern Division, issued an order on June 30, 2023, that may substantially alter the risk exposure for entities sued for violations of the Illinois Biometric...more
Can claiming you broke the law get you out of a contract? Illegality And Unforceability- MedMen – a Canadian corporation, and one of the best-known names in marijuana – recently made headlines for pulling an old trick:...more
Housing developers with property in the City of San Diego’s beach communities can now apply for the city’s Complete Communities Housing Solutions program to increase density without a discretionary entitlement....more
This month’s Friday Five covers cases relating to interpretation of regulatory deadlines, the enforceability of discretionary clauses, circuit courts going both ways on appeals from summary judgment rulings in favor of plans,...more
On May 12, 2022, the “Employee and Retiree Access to Justice Act” was introduced in the House of Representatives by Mark DeSaulnier (D-CA). Senator Tina Smith (D-MN) introduced a companion bill in the Senate. The bill seeks...more
As 2021 winds down, retirement plan sponsors should confirm that their plan documents are amended by December 31, 2021, to comply with certain plan changes: • Hardship Distributions. 401(k) plans and 403(b) plans must be...more
A Summary of Published Appellate Opinions Involving the California Environmental Quality Act - Despite relatively few published opinions this year, there were significant appellate court rulings on a range of topics,...more
I have often blogged about the thorny issue of bonuses under the FLSA and when those bonuses must be included in the regular rate of employees for overtime purposes. The crucial test is whether the bonus is discretionary,...more
The Tenth Circuit recently concluded that, as a matter of federal common law, a choice-of-law provision in a long-term disability insurance policy, which was part of the plaintiff’s employer’s ERISA plan, must be enforced...more
In response to the current economic crisis caused by COVID-19, many companies are considering cost-savings measures to improve their companies’ financial stability. One such cost-saving option is the reduction or suspension...more
Being in the Washington, DC Metro area, I hear a lot about politics. On the same day that the Washington Post ran an article about the “impeachment march,” the ritual of taking articles of impeachment from the House to the...more
Yesterday the PTAB designated as precedential two decisions related to the standard for denying institution under 35 U.S.C. §§ 314(a) and 325(d). The first decision rested primarily on § 325(d) but also considered some of the...more
In Griffin v. Hartford Life & Acc. Ins. Co., 898 F.3d 371 (4th Cir. 2018), the Fourth Circuit addressed the issue of whether a related company of an entity that enjoyed the abuse of discretion standard also was entitled to...more
To reduce the cost of maintaining an ERISA plan and reduce the expense of ERISA litigation, it is helpful to have courts both apply a deferential standard of review and limit the review to the administrative record. If an...more
In Ariana M. v. Humana Health Plan of Tex., 2018 U.S. App. LEXIS 5227, *5, 2018 WL 1096980 (March 1, 2018) (“Ariana M. II”), a majority of judges of the U.S. Court of Appeals for the Fifth Circuit, in an en banc decision,...more
• Directors were not entitled to stockholder ratification defense where stockholders only approved the general parameters of director and employee bonuses • This marks the first time in nearly 60 years that Delaware’s...more
On December 13, 2017, in Re Investors Bancorp, Inc. Stockholder Litigation ("Bancorp"), the Supreme Court of Delaware held that when stockholders have approved an equity incentive plan that gives the directors discretion to...more
In a recent decision by the Delaware Supreme Court in In re Investors Bancorp Stockholders Litigation, the court found that director equity grants based on director discretion are subject to an entire fairness standard of...more
A federal district court in Louisiana upheld a Texas state law prohibiting insurers from granting themselves discretion to interpret benefit plans when deciding benefit claims. These so-called “discretionary clauses” are...more
This month’s bid protest roundup discusses five decisions covering corrective action, an agency’s evaluation discretion, the “late-is-late” rule, intervening at the Court of Federal Claims (COFC), and Small Business...more
The Ninth Circuit recently held discretionary clauses in a self-funded plan were valid and that California Insurance Code § 10110.6, banning discretionary clause relating to insurance, was preempted by ERISA when applied to a...more
Seyfarth Synopsis: The Ninth Circuit Court of Appeals recently confirmed that ERISA preempts state insurance law bans on discretionary clauses for self-funded ERISA plans....more
On May 11, 2017, the United States Court of Appeals for the Ninth Circuit reversed a district court ruling, and upheld a California law that invalidates a plan provision that assigns the final determination on benefit payout...more