The ERISA developments of 2015 and 2016 can be placed in a few discrete buckets.The first involved lawsuits brought to challenge the manner in which the ERISA fiduciary managed pension plan assets. 

Many of these were like Tibble v. Edison International, in which the Supreme Court addressed a case brought by a group of plan participants, who asserted that the purchase and continued retention of retail class mutual funds violated the fiduciary's duty of prudence because the fees charged by the funds were too high.  

While the Supreme Court only addressed one procedural aspect of the case–how the statute of limitations applies when the original investment took place more than six years before the suit–the case reiterated important concepts of procedural prudence and documented decisionmaking, and exemplifies a common type of ERISA pension litigation that should continue into 2016. 

Indeed, in 2016, the Supreme Court has already decided a case involving this duty of prudence in the related context of an ERISA "stock drop" case.  

In Amgen v. Harris, the challengers questioned the fiduciary's retention of company stock in the plan after the fiduciary (a company insider) allegedly had indications that the company's stock was set to decline. 

In its decision early this year, the Court reaffirmed that such cases should face significant scrutiny by the courts, since Congress has expressly approved of plans that include company stock in their portfolios, and company insiders generally face significant obstacles (like the Securities laws) that prevent them from trading on inside company information.   

Drawing on these concepts, the Supreme Court reversed the Ninth Circuit and remanded back to the district court to determine whether the challengers could show any facts that would meet these demanding legal standards.   

Taken in conjunction with another Supreme Court case decided in 2014 (Fifth Third Bank Corp v. Dudenhoeffer) that first established these demanding standards, Amgen should ensure that these cases are carefully scrutinized by the courts.

We also see potential for an increase in ERISA litigation involving traditional health carriers and plans. 

There are a number of factors driving this trend, including the new economic realities brought on by the Patient Protection and Affordable Care Act.  With some companies cutting back on the benefits they offer, and a resultant pressure to guard against abuse of the insurance system, litigation in this space shows no signs of abatement. 

For example, 2015 and 2016 saw a surprising amount of litigation in which health care providers sought to claim the ability to bring ERISA suits on their own behalf. 

Those cases did not fare well in the courts, but it is likely that they will linger on into 2016.  

In the same vein, PPACA has created suits involving allegations of employee misclassification, actions under ERISA to enforce PPACA coverage mandates, and ERISA retaliation claims.  Similarly, the increased focus on health care has caused a number of states to institute reporting and information collection policies aimed at health care insurers and providers. 

There have been a number of challenges to these initiatives on the grounds that they should be preempted by ERISA. 

The Supreme Court recently heard arguments on whether Vermont's reporting requirements are preempted by ERISA, and the Court's decision in this case could have huge implications for the administrative burdens that states can impose upon ERISA health care plans. 

Another type of common health care litigation involved challenges to certain types of plan terms–such as those creating plan-specific statutes of limitations or mandatory arbitration. 

In this context, the lower courts have heeded the call of the Supreme Court to generally defer to the terms of the ERISA plan, with the operating principle being that it is up to the parties to establish the terms of the plan, and up to the courts to enforce those terms. 

Finally, a number of 2015-2016 cases involved the scope of relief available under ERISA's remedies provisions; this was the subject of the Supreme Court's recent decision in Montanile  v. Board of Trustees, with the Court once again looking to ERISA's structure as a whole and the history of equitable relief in construing Section 502(a)(3) of ERISA, which contains a provision that allows plan fiduciaries to bring suits "to obtain . . . appropriate equitable relief."     

The issues discussed above are just a sampling of the litigation trends we have seen over the recent past. 

We'll be watching closely for new developments, and to see whether the 2016 litigation vintage is as "big" as planned or whether it withers on the vine.