Everybody Must Get Sued

I logged into my social media this morning and I noticed a pervasive theme. LinkedIn, Facebook, Twitter -- the trend in their highlights or whatever the particular site is calling that section is that somebody is getting sued. In fact, looking at my top highlights on each of those sites, more than 50% of those highlights is that somebody is suing somebody else. That's a frightening sign of the times.

Suppose instead of those sites, there was a site called BenefitsGram or SnapCompensation, what would they look like? Well, there are sites that are a little bit like that -- there's Plan Sponsor's News Dash and Benefits Link's Benefits Buzz, a pair of news consolidator sites. And, when I look at what's trending there, it's the same -- everybody must get sued.

So, why am I writing about this here?

In these days where many of the pundits talk about risk management and de-risking, is there a bigger risk than getting sued? For many companies, there may not be. A big enough lawsuit can put one of them out of business. I could certainly name some where that has happened (I'll skip that part though as I'm sure you have access to Google search as well).

In my world, it's happening around benefits and compensation programs on a more than daily basis. Somebody is getting sued. And, yes, I will agree, many of those lawsuits are frivolous. And, even among the ones that have some substance to them, an awful lot of those should fail on the merits.

The sad part, though, is that among those that should fail on the merits and even those that should succeed, almost all of them could have been avoided.

Defending a lawsuit is expensive. Even if you win, you probably paid an attorney a lot of money to defend you. And, that attorney likely convinced you (rightfully so in most cases) that you needed an expert witness or two or three on your side and you paid them a lot of money as well. So, even if you won, you lost.

What does real winning look like? It looks like not getting sued in the first place. On the contracts side, the key seems to be to write 100 page license agreements (or similar documents) that you know your customers won't read before they sign off on something that is so one-sided that they have no rights at all. On the benefits and compensation side, it's not so simple. Usually, you have to have things like plan documents and those documents have lots of legal requirements to comply with all the laws that Congress touts, but that are festered with so much junk that makes for great PR, but no sense at all.

So, you write those documents or get counsel to do that for you (probably a better idea). And, back in Section 14.23 of one of the documents, somebody wrote a really long and confusing paragraph. and, they left off an s at the end of a word that would have changed a singular to a plural. Voila! Somebody finds that the s is missing and decides that was always intended and not having that s will entitle an entire class of potential plaintiffs to double their benefits or more.

Will they find a court that will allow them to strike the first blow? Do they win at the District Court level? If they do, you have already spent a lot of money and if you want to appeal, you'll have to spend  a lot more.

So, what's the message here? Do everything you can to make sure that your intent of each of your plans is clear. Explain with examples. While I don't often praise IRS and Treasury for their mastery of the English language, they are well known for using words such as "the provisions of this paragraph (b) can be illustrated by the following examples" and then they give maybe five examples to make crystal clear what they intended.

You can too.

And you should.

But you probably haven't.

And neither have your counterparts at thousands of other companies.

So, here's your checklist:

1. Address the litigation risks in your plans.
2. Take steps to fix and problems that you have uncovered.
3. If you do get sued, make sure your counsel finds great expert witnesses for you.

Otherwise, everybody must get sued ... with apologies to Bob Dylan and Rainy Day Women #12 and 35.

What Does Your Plan Document Really Say?

What does your plan document really say?

That's right. You read my question correctly. You probably know the words that are there. And, you certainly know what they say. But, would everyone else agree with you? That may be the really key question.

Let's limit our discussion here to retirement plans, both qualified and non-qualified. Those are usually complex documents. They contain an awful lot of words that are intended to both inform the plan participants of their benefits and attendant rights and to tell the person or people administering the plan exactly how to do that. And, we all know that because the English language is so precise that no two people would ever disagree on the meanings of those words, would they? Of course, they would, and they often do.

Perhaps that's a key reason that there is so much litigation related to retirement plans. If a plan participant took his summary plan description (SPD) and calculated his own monthly benefit and determined that it was $2,000 and a few weeks later, he received a benefit determination that his monthly benefit would be $1,000, he's not going to be happy.

Perhaps his reading of the SPD was irrational. Perhaps the SPD specifically says everywhere that pensionable earnings shall be based on the participant's years with highest base pay and he read that to include bonuses and car allowances and equity grants as well.

On the other hand, perhaps his reading was different than yours, but rational. To quote Scooby Doo (I always wanted to quote Scooby Doo in a retirement benefits post), "Rut ro."

How do we avoid this problem?

There are presumably legal safeguards that are typically inserted into a plan document to get past this problem should it occur. Clearly, however, they don't always work. If they did, no plan sponsor would ever lose in litigation. We know that's not reality.

To help to ensure that you're not one of those litigation losers, wouldn't it make sense to have an independent review of those documents?

I'll leave it up to the attorneys to tell you how that should be structured. But, I am going to tell you that it's important to have attorneys and non-attorneys working together on this review.

Why? Attorneys certainly know how to read documents, especially the ones that they write. But, in practice, they won't be administering your plan. And, a person without legal training may read those legal words differently than an attorney will.

Additionally, since we are talking about retirement plans here, administration may include what I've heard a number of attorneys refer to as a dirty word -- math. While some are very good at it, I've heard many attorneys say that math was always their worst subject in school. They fought through it, but they never understood it.

And, sometimes, those plan documents serve to prove that. Suppose the attorney wrote the document to mean exactly what he thought it was supposed to. But, perhaps to a person with a little bit better understanding of the math involved, the calculation would work out differently. I'll say it again -- rut ro.

Use counsel as you should. Consider getting them to engage consultants on your behalf who can help them and you to understand when your plan may be interpreted differently than they had intended. By saving litigation costs down the road, it may be the cheapest money you've ever spent.