Surveying the case law, and based upon the duties owed by the Trustees, the court opined that it could discern no reason to distinguish between the application of the fiduciary exception to attorney-client privilege or the work product doctrine. The district court held the first e-mail was subject to the fiduciary exception because the claim was treated as a routine appeal and there was no indication of future litigation. There the plan had denied the claim, exhaustion was complete, and plaintiff sought reconsideration. 28, 2011) (holding that where litigation was filed before claim review was completed, in-house counsel’s communication was legally privileged and confidential because it related to the litigation, not the claim review process); David v. However, Concepcion suggests that when arbitration does apply to ERISA claims, it may be used to avoid the delay, expense, and risk associated with class actions.
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Whether in-house or outside counsels’ benefits-related advice remains legally privileged and confidential, and/or protected by the attorney work product doctrine, continues to be a hot topic for the courts, participants, plan administrators, and ERISA plans. Under the so-called “fiduciary exception” crafted by the courts, “an employer acting in the capacity of ERISA fiduciary is disabled from asserting the attorney-client privilege against plan beneficiaries on matters of plan administration.” U. That is to say, the participant no longer shared common interests with other plan participants and the plan fully expected that if the claim was denied, surely a lawsuit would follow. Recently, the Fourth Circuit has promulgated an opinion on legal privilege and work product in the ERISA context.
It is also no surprise that ERISA plans often seek advice of counsel to assist in plan administration and settlor function matters. at the time the communication occurred, the plan participant’s interests diverged from the plan and litigation was foreseeable. Opinions dealing with the divergence/work product issue have revolved around the timing of counsel’s communication.
This month, we provide an update on the developing law regarding the “fiduciary exception” to attorney-client privilege and the work product doctrine. Supreme Court decision from this term, AT&T Mobility v. See Stacey Cerrone, Proskauer Rose LLP, Reconciling the Attorney Client Privilege with ERISA’s “Fiduciary Exception,” Bloomberg Law Reports — Employee Benefits, Vol. Work product refers to the writings, notes, memoranda, reports on conversations with the client or witness, research, and confidential materials that reflect an attorney’s impressions, conclusions, opinions, legal research, or theories. The Rationale for the Fiduciary Exception to the Attorney-Client Privilege The fiduciary exception developed in non-ERISA cases involving other types of fiduciary relationships, such as between estate trustees and beneficiaries and shareholders and corporate managers.
This “exception” often confounds in-house and outside counsel alike, and the article concludes with some best practices suggestions. Concepcion, which held that the Federal Arbitration Act preempts a state law prohibiting waivers of class arbitration. Unlike the attorney-client privilege, the right to assert work product protection belongs principally to the attorney. See Mett, 178 F.3d at 1063-64 (reviewing genesis of fiduciary exception); see also Garner v. 1970) (recognizing fiduciary exception and stating, “where the corporation is in suit against its stockholders on charges of acting inimically to stockholder interests, protection of those interests as well as those of the corporation and of the public require that the availability of the privilege be subject to the right of the stockholders to show cause why it should not be involved in the particular instance”).
These “timing” issues recur in various cases where plan administrators consider benefit claims and defendants argue that legal documents are shielded from production because the interests of the plaintiff and plan have diverged, and/or that the documents were created in anticipation of litigation. The Concepcions filed a lawsuit in federal court that was consolidated as part of a putative class action asserting a claim related to the alleged improperly charged sales tax.