There are times during ERISA litigation when lawyers' tactics try the patience of judges, whose exasperation extends to attorneys for plaintiffs and for defendants.
Take for example U.S. District Court Judge Jennifer L. Thurston in Fresno, Calif., who rejected a petition by Sutter Health and its fiduciaries to dismiss a lawsuit filed by current and former participants in a 403(b) plan. The plaintiffs alleged ERISA violations such as excessive record-keeping fees and comparatively high total plan costs.
The judged noted that defense lawyers submitted more than 600 pages of documents to bolster their argument.
"As far as the court can tell, none of the documents clearly disprove plaintiffs' factual allegations," the judge wrote on Feb. 9 in the case of In re Suttter Health ERISA Litigation.
"The defense fails to cite specifically to any particular portion of the documents to show that the plaintiffs' allegations are untenable," the judge continued. "The court declines to cull through the 600 pages to find the factual nuggets that support the defendant's motion."
Then, there's the case of Jennifer M. Probst vs. Eli Lilly & Co. et al, which was dismissed Feb. 3 by U.S. District Court Judge Jane Magnus-Stinson, Indianapolis, who rejected allegations of ERISA violations, including excessive record-keeping fees.
The judge chided attorneys for both sides. "Court notes Ms. Probst's (and to a lesser extent, Lilly's) practice of including lengthy footnotes which contain argument," she wrote.
"The use of lengthy footnotes could be construed as a party's attempt to circumvent the court's page limits for briefs," the judge wrote. "Moreover, lengthy footnotes are cumbersome and difficult for the court to review."
She told "all counsel" to familiarize themselves with the court's revised practices and procedures document, which says footnotes aren't considered legal arguments.
The judge issued her remarks in a footnote.
