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  • Writer's pictureNeal Shikes

ERISA Class Actions: A Good Defense is the Best Offense

It is always easy to recognize when a defense dominates a contest:

. low scoring

. poor success percentages

. many turnovers

. lack of “big” plays

With regards to ERISA Class Actions, it seems like the defense is dominating:

. high percentage of counts are dismissed

. small settlements (relative to potential damages)

. high case dismissal rate

Sometimes, a team has a great deal of talent but roles have not been correctly identified, players are not in the correct roles, or there is skill-set overlap. These things must be diagnosed before game plan design or success will be limited.

An expert in their field is no different than an athlete that has a specific role to fulfill within a game plan. The definition of an expert must be clearly defined so the right one can be hired. Oftentimes, it is not the case and experts are hired to be proxies by individuals who do not have the subject matter expertise. The defense, probably, recognizes this by the voracity of the filing.

Breaches of Fiduciary Duty are causation not outcome. So, when the defense recognizes allegations and counts stated as outcomes, they become offensive minded and, perhaps, know that the plaintiffs are “lacking” in expertise. This increases the likelihood that counts/allegations will get dismissed or even the entire filing. In football, this is like the defense calling a “blitz” because they can see the pass play that the offense called by the player formation.

As for ERISA Class Actions, history shows that inferring fiduciary breaches via allegations of outcome fails because the plaintiffs fail to allege that the processes were flawed. Great defenses always expose this.

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