You filed a claim for short-term or long-term disability coverage or life insurance benefits, or health care coverage. You did not get the result you expected. Maybe you are experiencing a problem with your pension, or your 401k plan. You’ve heard of the ERISA law, the Employee Retirement Income Security Act of 1974 (ERISA). Congress passed it to help you, right? Signed into law on Labor Day in 1974, Congress enacted ERISA with the intent to protect employee benefits, and to encourage employers to provide benefits to their employees, by imposing a uniform law so employers could avoid compliance with 50 state laws that were not all the same.
Congress created substantive rules for pension plans, 401k and other retirement plans, including minimum vesting and accrual rules, funding requirements and treatment of spouses. Unfortunately, Congress did not impose parallel substantive standards on welfare benefit plans. Welfare benefits are typically plans providing for life insurance, accident insurance, health insurance, disability insurance, severance benefits and some other types of benefits.
ERISA’s exclusive benefit rule unyieldingly directs employee benefit plan fiduciaries to discharge their duties with respect to a plan solely in the interest of the plan’s participants and for the exclusive purpose of providing benefits to them and their beneficiaries. That is the law. Sounds great in theory, right? The reality is that ERISA has been turned on its head. The law gives employers and insurance companies a leg-up when they don’t want to pay.
So how do I find a good ERISA lawyer? You can start by googling for lawyers who claim to have ERISA expertise. Names will quickly populate your search results. Often some lawyers will appear at the top of the search as paid advertisers. Other lawyers will be listed organically. But the real question you need to ask – who is the right lawyer for me that can deliver results?
- Seek Recommendations.
Start with your friends and work colleagues. Ask your local lawyer. So many lawyers run when they hear the word “ERISA.” You will quickly discover that there are very few attorneys in the entire United States that specialize in representing individuals, and not corporations, in ERISA claims and litigation. If ERISA was easy, there would be many lawyers representing individuals in this area.
Ask your local lawyer, “If you had an ERISA claim, who would you hire?”
On the corporate side there are organizations such as the ERISA Industry Committee (ERIC) which lobby for large employers on public policy issues in the retirement and other employee benefit space. Also, there is the American Council of Life Insurers (ACLI) who advocate on behalf of its 275-member insurance companies. But for individuals there are no comparison organizations. If you know a corporate lawyer, or ERISA defense lawyer, ask that lawyer, “Who should I hire?” Maybe you know a retired judge, or you know a mediator. Ask the same question.
The location of the lawyer is not of great consequence. Good ERISA lawyers litigate throughout the United States. ERISA is a federal law. Good ERISA lawyers know how federal courts apply ERISA throughout the United States. Given that most ERISA cases are tried without live witnesses—and this is one reason that makes ERISA litigation difficult—your location and your lawyer’s location need not be the same.
- Do you know a former client of the lawyer you are considering?
Talk to the former client. If you don’t know a former client of a lawyer you are considering, look at Google reviews. Try to determine, besides the results achieved, how did the lawyer interact with the client? Did the lawyer keep the client informed? Was the lawyer hard to reach? Did the lawyer value the client as a human and more than just another case?
- Take a deep dive into lawyer success rates.
After you’ve done some preliminary homework, you need to take a deeper dive. You probably don’t want to hire a lawyer who has handled a few ERISA cases. You probably don’t want a lawyer who has never represented an individual in ERISA claims and litigation and is ready to learn. ERISA is tied to employment but it’s a very different area of legal practice compared with Social Security Administration disability claims and litigation or workers’ compensation benefits.
ERISA requires specialization. ERISA is a complex statute. Besides the statute, ERISA is heavily regulated by the Department of Labor and Department of the Treasury, and some other federal agencies such as the IRS and the Pension Benefit Guarantee Corporation. ERISA is a mashup of administrative law, contract law, trust law and newly created federal common law. ERISA is famously complex and unforgiving. About three decades ago, one federal judge called it: “Everything Ridiculous Imagined Since Adam.” Florence Nightingale Nursing Service Inc. v. Blue Cross and Blue Shield, 832 F. Supp. 1456, 1457 (N.D. Al. 1993), aff’d, 41 F.3d 1476 (11th Cir. 1995). Staying on top of the thousands of ERISA decisions in the federal courts each year is just one part of the practice. Understanding insurance company behavior and nuances of insurance companies only comes with years of experience. Knowing the regulations is another.
Just because a firm reports that it has filed hundreds or thousands of claims and lawsuits and that it settles a high percentage of its cases, does that mean the firm is getting good results for its clients? Merely because a firm boasts that it has recovered vast sums of money for its clients, are you able to determine if that firm will litigate your case to a conclusion? Some law firms are prolific filers of ERISA lawsuits but virtually none of their cases are litigated to conclusion. Maybe you don’t care. You are interested in a quick settlement. You are willing to settle for a small sum of money. Perhaps a firm that advertises a very high settlement rate is the firm you want. Each person has different goals.
Yet if your goal is to maximize your recovery, you need an attorney with a history of litigating cases to the end. You want a lawyer who has litigated cases through the United States District Courts and the United States Circuit Courts of Appeals. You can ask the lawyer whom you are considering showing you cases that the lawyer has litigated. The cases are reported on WESTLAW, LEXIS, BLOOMBERG and other legal databases.
If you go to my profile page, you will find a short list of significant cases that is only a sampling of the cases that Jonathan M. Feigenbaum has litigated to conclusion. I am a Fellow of the American College of Employee Benefits Counsel. Fellows of the American College of Employee Benefits Counsel are selected by the College’s Board of Governors from among employee benefits attorneys nominated for that honor and recommended for consideration by the Board’s Membership Committee after considering the recommendations of regional screening committees. Fellows have a minimum of 20 years of experience in this area of practice. Selection as a Fellow reflects the Board’s judgment that a nominee has made significant contributions to the advancement of the employee benefits field. Lawyers at national law firms who represent large corporations, large benefit plans and insurance companies dominate the membership of the College. I am an outlier as a Fellow who represents individuals rather than corporate interests. But I am pleased to have been nominated and accepted as a member of the College.
Lastly, don’t take my word for it. Read the reviews from my clients.
Choosing an ERISA attorney to represent you in an ERISA claim, or appeal or litigation is an important decision. If I can help you, please contact me at (617) 357-9700.
