Top of Mind

Lessons Learned from Litigators

Last week, I had the pleasure of moderating a panel discussion at the Retirement Advisor Council Annual Meeting with two attorneys who have - and are - litigating some of the highest profile retirement plan lawsuits to date, Kai Richter of Nichols Kaster, on the plaintiffs’ side, and Brian Ortelere of Morgan Lewis, on the defense side.  

With both plaintiff and defense counsel in the same room, I wondered if I would be more of a referee than a moderator; however, the two shared a nice rapport and provided some valuable insight into a world few of us get to see directly.

For me, it was an opportunity to hear what counsel litigating these cases believe to be risk factors for plan sponsors and those who work with them. While many factors were discussed, the ones that stood out for me were:

  • All meeting minutes and other documentation related to fiduciary conduct, even emails, should be viewed as something that could be discoverable in litigation someday. Thus, the following question should always be asked before drafting a document or hitting the “send” button: “Would I be comfortable with this email if it were subject to the scrutiny of counsel in a lawsuit?”
  • Process is king.  Actions should be taken to address any plan issues thoroughly and without delay, and any action steps taken should be comprehensively memorialized.  A lack of documentation makes it extremely difficult for attorneys in the event of litigation.
  • Don’t be afraid to pick up the phone!  Back-and-forth emails over a plan issue is not often the best approach to resolution, particularly if something goes wrong and those emails are discoverable, as referenced above. While the phone is often considered “old-school,” it can be an effective way to solve a small problem before it becomes a major one.

I hope that the lessons I learned from these litigators will be helpful to our readers, as well!

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Note: This feature is to provide general information only, does not constitute legal advice, and cannot be used or substituted for legal or tax advice.

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