How Federal Judge Trends Can Inform ERISA Litigators

If youe retirement plan sponsor client is facing an Employee Retirement Income Security Act (ERISA) lawsuit, it will want an attorney well-versed in its type of ERISA case, but it may also want an attorney with some “insider” information.

To that end, Bloomberg Law launched a number of new labor and employment tools and resources on its Labor & Employment Practice Center. The tools aim to give attorneys and their clients clear and powerful insights into the way U.S. federal courts interpret and decide ERISA litigation. 

For example, the Litigation Analytics tool helps users craft litigation strategies and understand potential impacts specific judges and courts can have in the labor and employment space. A snapshot of the type of information included in the tool provided by Bloomberg shows Southern District of Texas Judge Lee Rosenthal grants motions for summary judgement 10% more often in ERISA cases than Northern District of Illinois Judge Harry Leinenweber. The judges grant such motions 60% and 50% of the time, respectively, the tools show. 

Another interesting example: Middle District of Florida Judge John Steele takes the shortest average length of time to decide ERISA cases, at 234 days.

In addition to the data on specific judges’ tendencies for granting summary judgement and the time it takes to close litigation, Bloomberg Law’s Litigation Analytics tool allows users to see trends in appeals outcomes; review past appeals attempts; and track appearances and case types. Users can also evaluate how many times a law firm or company has appeared before a particular judge.

The tools show Judge Jack Weinstein in the Eastern District of New York has been almost four times more likely to deny a motion to dismiss in full than Judge Jesse Furman in the Southern District of New York. And, Judge Leonard Stark in the District of Delaware had the busiest bench of the judges sampled over the past five years: the top three firms appearing before him appeared a total of 1,050 times.

Jo-el Meyer, managing editor for labor & employment, benefits and HR news, at Bloomberg Law, who is based in Arlington, Virginia, tells PLANADVISER, “We feel that for litigators to get an edge up and be better at their business, they need information about judges and how courts have handled cases. The Litigation Analytics tool was designed to enable litigators to look at judges’ histories of opinions, to see litigation results. Also how long a trial takes will tell them what resources to invest.”

Meyer says it may also help plan sponsors find an attorney. By using the tool, they can see what law firms handle ERISA cases and the outcomes firms have had.

Jamie Fleckner, a partner with Goodwin Procter LLP, who is based in Boston, tells PLANADVISER the judge assigned to the case does have an impact on how litigators think about defending the case and the strategy they might employ in litigating. For example, if a judge’s tendency is to not grant dispositive motions, as a litigator thinks about case strategy, he or she may make a strategic or tactical decision on whether or not to file such a motion, i.e. a motion to dismiss or for summary judgement.

Fleckner says knowing how much time a judge is expected to take with a case is critically important in managing client expectations. “Plan sponsors that find themselves in litigation will want to know the life cycle of the case and when next steps occur so they can plan accordingly and know what to expect.”

Regarding appellate outcomes, Fleckner says, “You always as a litigator think about potential appellate remedies and making sure you’re preserving a record of appeal.” He adds that there are broad strokes in judges’ past tendencies—certainly any case on its own might be an outlier—so litigators would have to carefully compare a judge’s tendencies with their particular case. “But, you certainly want to understand how strong an appellate case you have as you think about the strategy of your case overall,” he adds. “Do you have a strong ground for appeal? If the judge has been successfully appealed, or if the judge has often upheld a ruling on appeal, you have to think about whether the appellate path will be successful.”

Because each judge has his or her own way of conducting business and their own preference, it is important in any litigation to know a judge’s specific preferences, Fleckner concludes. But, aside from a database, he notes that local counsel can help a litigator understand a judge’s preferences and tendencies even if they don’t litigate ERISA cases.

Bloomberg Law’s Litigation Analytics includes extensive information on the litigation activities of companies (more than 70,000 public and 3.5 million private companies), as well as the law firms that represent them.

It offers unlimited use for subscribers at an all-inclusive price and full access to all that the platform has to offer, providing cost predictability. More information can be found at https://www.bna.com/labor-employment/?promocode=BLAW639AW. The product is available without additional cost to existing Bloomberg Law subscribers.