[firm] blog logo

More COBRA Election Notice Litigation: Are Your Mailing Procedures Adequate?

The last few years have seen dozens of lawsuits filed alleging failures associated with COBRA election notices. Generally, these complaints allege that (i) any deviations from the DOL model COBRA election notice (a) were done to save money for the employer and deter employees from electing coverage, and (b) resulted in a notice that would not be understood by the average participant, and (ii) the election notices did not include the required content prescribed by applicable COBRA regulations. Recent cases highlight another area of potential litigation–whether proper mailing procedures for the election notices have been followed and can be proven by the employer.  In one such case, a former employee was provided a COBRA election notice for medical coverage that was sent to her former mailing address because an updated address had not been provided to the employer’s third-party COBRA administrator. The court noted that the employer’s delegation of COBRA… Continue Reading

It’s Time For Your Fiduciary Check-Up!

Due to the recent surge in ERISA litigation against employers and executives alleging, among other things, that they breached their fiduciary duties to plans and participants by allowing service providers to charge excessive fees, some fiduciary liability insurers have reportedly revamped their processes for evaluating applications for fiduciary liability coverage. These changes may impact an employer’s ability to obtain adequate fiduciary liability coverage, thereby increasing the exposure to plan sponsors and their executives.   Periodic fiduciary check-ups are always a good idea, but in light of these developments, it is perhaps more important than ever that plan sponsors conduct periodic internal reviews to ensure they continue to meet their fiduciary duties to their plans and participants. Among other things, responsible plan fiduciaries should:  Determine whether the committee (or committees) responsible for administering the plan and overseeing plan investments meets regularly and properly documents its meetings, including information on not just what… Continue Reading

New Year’s Resolutions to Ensure Proper ERISA Fiduciary and HIPAA Privacy Training

With the start of the new year, a good New Year?ÇÖs resolution for employers that sponsor ERISA retirement and/or health and welfare benefit plans is to ensure that all current ERISA plan fiduciaries?Çöincluding any new members of plan administrative and investment committees?Çöhave received up-to-date ERISA fiduciary training. ERISA litigation brought against individual plan fiduciaries has significantly increased in recent years. Plan fiduciaries assume responsibilities and make decisions that could potentially subject them to substantial personal liability. To mitigate this risk exposure, each committee member (or other ERISA plan fiduciary) should receive fiduciary training initially upon becoming a plan fiduciary and at least annually thereafter. Plan fiduciaries need to understand (i) when they are acting on behalf of the plan?ÇÖs participants in a fiduciary capacity, (ii) the different fiduciary roles under a plan and how fiduciary liability can attach in different ways, (iii) the difference between fiduciary decisions and non-fiduciary (?Ç£settlor?Ç¥)… Continue Reading

DOL Clarifies Position Regarding COBRA Notice Requirement

As we discussed in our prior blog post here, there has been a recent significant increase in class action litigation challenging the sufficiency of COBRA election notices. These cases typically allege that a deficient or misleading COBRA notice caused a former employee (or other COBRA qualified beneficiary) to lose group health plan coverage because the notice lacked certain required information or was not written in an understandable manner. One claim that is often raised in these cases is that the COBRA notice fails to provide the name, address, and telephone number of the plan administrator. However, the DOL recently clarified its position on this matter in an amicus brief filed in Carter v. Southwest Airlines Co. Board of Trustees, which is a proposed COBRA class action lawsuit. In its brief, the DOL stated that a COBRA election notice is not required to contain contact information for the plan administrator if… Continue Reading

Cases Highlight Importance of Governing Law Clauses in ERISA Plan Documents

The U.S. Court of Appeals for the Tenth Circuit recently held that the choice of law provision contained in a long-term disability insurance policy (the ?Ç£LTD Policy?Ç¥) controlled when determining which state law applied to the case. The LTD Policy, which was subject to regulation under ERISA as an employee benefit plan, stated that it was governed by the law of Pennsylvania, where Comcast (the employer) was incorporated and had its principal place of business. The employee argued that Colorado law controlled, because Colorado is where the employee worked for Comcast and filed the lawsuit. This was important because Colorado insurance law prohibited granting discretion to the plan administrator to interpret the LTD Policy, whereas Pennsylvania law did not prohibit this deferential standard. Generally, a plan administrator?ÇÖs denial of benefits under an ERISA plan is reviewed by a court de novo (i.e., without deference being paid to the plan administrator?ÇÖs… Continue Reading

Yahoo! v. Facebook: Clicking Through the Blogosphere Bias

Originally posted March 13. ?áUpdated March 28, 2012. On March 12th, Yahoo! filed a patent infringement lawsuit in the Northern District of California alleging that Facebook infringes ten Yahoo! patents.?á Immediate reaction has been widely critical of Yahoo!, from interpreting statements made in the filing as a claim by Yahoo! that it ?Ç£patented the whole idea of Facebook?Ç¥ to characterizing Yahoo! as ?Ç£relentlessly stagnating as Facebook innovated.?Ç¥?á Such is to be expected from the blogosphere with regard to the party asserting software or Internet-related patents.?á However, if one really wants to weigh the merits of this lawsuit and the claims being made about it, there really is no substitute for digging into the subject matter of the patents that Yahoo! claims cover various aspects of how Facebook operates: Yahoo!?ÇÖs ?Ç£Advertising Patents?Ç¥ Yahoo! claims protection in systems and methods for advertising, placing advertisements on a web page in a manner according… Continue Reading

>Gibson Brings Another Defendant On-stage

>Gibson has filed suit against another defendant alleging infringement of its concert simulation patent. This time, it involves Seven45 Studios’ new video game Power Gig: Rise of the SixString. Gibson lost its first suit involving the same patent against Activision in 2009. In June of 2010, Gibson settled with Harmonix, Viacom, and EA in a similar suit.

>Tip: IP Indemnification

>As patent and other intellectual property lawsuits continue to litter the video game landscape, it makes a mind wander to one of everyone’s favorite clauses in developer and publisher agreements: indemnification (which we have discussed before). This is one of those clauses that gets buried at the end of the agreement, often on the hope that it never gets discussed. And, certainly neither party ever hopes to have to invoke the indemnity clause. The problem arises that, while the clause generally does not see the light of day, should the clause ever become necessary — the dollars and stakes are bigger than ever anticipated.A publisher will generally try to seek a broad indemnity from a developer, so that, if a patent owner sues the publisher alleging that the developer’s game infringes the patent (or other intellectual property), the publisher will be protected. The indemnity clause will be used to shield… Continue Reading

>Trademark Clearance and Mafia Wars

>As a reminder to us all of the reason for a good trademark clearance search, game developer Digital Chocolate, Inc., has filed a trademark infringement suit in the Northern District of California against Zynga Game Network, Inc., creator of popular Facebook games like Farmville and Mafia Wars. The complaint alleges that Zynga, which released Mafia Wars in 2008, has ?Ç£hijacked?Ç¥ the Mafia Wars name from Digital Chocolate. Although Digital Chocolate never registered the Mafia Wars mark in the U.S., it claims Zynga is violating the common law trademark rights it has had since it started selling its own Mafia Wars game in 2004. For the careful entrepreneur, this case highlights the importance of an adequate pre-launch trademark clearance search to minimize the risk of problems in the future.A pre-launch trademark clearance search might encompass, for example, federal and state trademark registrations and applications, common law rights, web searches, and domain… Continue Reading

>Boomshine v. ChainRxn update

>As we covered back in March, casual game designed Daniel Miller filed a complaint in the Northern District of California, accusing the creator of a copycat game, known as ChainRxn, Yao Wei Yeo, and Facebook, of copyright infringement. The federal judge hearing the case has recently issued a ruling refusing to dismiss the suit, shooting down a argument by Facebook that Miller didn’t properly allege infringement based solely on how the two games ?Ç£look and feel.?Ç¥ Miller?ÇÖs complaint accused Yeo of direct copyright infringement, claiming he improperly accessed the source code for Miller?ÇÖs game Boomshine to create ChainRxn. Facebook had argued that Miller didn?ÇÖt adequately plead direct infringement by Yeo, because Miller?ÇÖs bare complaint that ChainRxn ?Ç£looks and feels?Ç¥ identical to Boomshine is insufficient to allege that Yeo had copied the game source code. The Judge disagreed with Facebook, noting that a plaintiff can rarely examine a defendant?ÇÖs source code… Continue Reading

December 2022
S M T W T F S
 123
45678910
11121314151617
18192021222324
25262728293031

Archives