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Practicing law is demanding — long hours, unforgiving deadlines, and high stakes. Most lawyers expect those pressures as part of the calling. Conflict is also inherent to the work. 

By Sarah Kuchon 

Practicing law is demanding — long hours, unforgiving deadlines, and high stakes. Most lawyers expect those pressures as part of the calling. Conflict is also inherent to the work. 

However, incivility and unprofessionalism should not be. Such conduct adds a weight that should never be part of the job. We understand that disagreement and advocacy are part of the profession, but what should be professional disagreements too often become personal attacks, and what should be intentional advocacy can become performative. 

As professionals, we must reconsider what zeal in advocacy actually requires. 

It is easier to see incivility in someone else’s conduct, but the only behavior lawyers can control is their own. Culture shifts one lawyer at a time, through the thousands of choices we make and how we show up in our professional work each day. Have you ever walked out of a conversation wishing for a do-over? Perhaps it was a curt reply, an email sent too quickly, or a defensive explanation. These moments remind us that incivility and unprofessionalism can be subtle and unintentional, shaped by pressure more than malice. One of my favorite quotes is from psychiatrist and Holocaust survivor Viktor Frankl, who wrote, “Between stimulus and response there is a space. In that space is our power to choose our response. In our response lies our growth and our freedom.” Frankl reminds us that there will always be events that trigger us. Our power lies in pausing and considering our choice: Will we react impulsively or respond with reflection and intention? This practice, repeated one lawyer and one moment at a time, is how our profession grows in civility and professionalism.  

Reaction vs. Response  

A critical difference exists between reaction and response. A reaction is immediate and driven by the nervous system’s urge to reduce tension. Reaction narrows options and can escalate conflict. A response, on the other hand, includes a pause for reflection and consideration of objectives, tone, and long-term consequences. Response widens options and better serves the client’s interests. 

The “space” Frankl describes is what psychology calls “the window of tolerance,” a framework developed by psychiatrist Daniel Siegel that describes our capacity to pause, think clearly, regulate emotions, and act in alignment with our values. Outside of that window, we move into fight, flight, or shutdown, and our response yields to our survival reflex. Legal practice routinely pushes lawyers to the edges of that window with contentious hearings, demanding clients, and relentless deadlines. Without awareness, reaction can become our default. 

Correcting a Misconception 

The phrase “zealous advocacy” has taken on a life of its own in legal culture. Many lawyers have come to hear “zeal” as permission for aggression, hostility, or winning at any cost, often at the expense of civility and professionalism. However, the Michigan Rules of Professional Conduct never use the term “zealous advocate.” The comment to Rule 1.3 on diligence states only that a lawyer should act “with commitment and dedication to the interests of the client and with zeal in advocacy on the client’s behalf.” 

Zeal, by ordinary definition, means eagerness and enthusiastic interest in pursuit of a cause. Advocacy is the act of supporting a cause. Considered together, zealous advocacy is simply the enthusiastic pursuit of a client’s cause. That pursuit exists within the framework of ethics and professionalism. Within that framework, civility is not a courtesy but a professional discipline, and ethics calls us to to choose intention over impulsiveness.  When zeal is misunderstood as aggression rather than enthusiasm, self-interest can replace client interest.  That posture is not advocacy. It is reaction misnamed as zeal. 

A pause does not betray diligence. It protects it by preventing errors, aligning action with client objectives, ensuring competent representation, and promoting thoughtful execution. As lawyers, our ethics are guided by the Michigan Rules of Professional Conduct, which encompass core principles such as competence, diligence, candor, and fairness.  

These duties require professional judgment. A pause supports that judgment by creating space to consider obligations, options, and consequences and to notice whether we are serving the client’s interests or protecting our own comfort and image. The standard in our rules is reasonable promptness, not immediacy, and certainly not impulsive promptness. The canon implies deliberation. Incivility and unprofessional conduct often grow from reactivity rather than reflection. The pause helps us meet our ethical obligations. The challenge is learning how to widen the space when pressure narrows it. 

Widening Our Window 

Creating space is a practical skill. We widen our window of tolerance through ongoing awareness, reflection, and practice. We can practice in small, ordinary ways: delaying an email rather than pressing send in the heat of the moment, pausing to ask whether our conduct serves the client’s interests, using a brief recess to allow emotions to settle before proceeding, and, when all else fails, pausing to breathe. Slow, steady breathing signals safety to the nervous system, calming the stress response and allowing the thinking parts of the brain to come back online. One effective breathing technique to try is box breathing: inhale for four counts, hold for four, exhale for four, and hold again for four, like tracing the four sides of a box. Even 30 seconds of intentional breathing can change the course of an interaction. 

Practicing True Zeal 

Leadership in law is rarely dramatic. More often, it looks like steadiness in ordinary moments. It is the discipline to remain calm when provoked, the resolve to do what is right rather than what is easy, and the wisdom to know when to speak and when to remain silent. 

Lawyers shape the tone of litigation, courtrooms, and negotiations through their conduct. That influence calls us to be pillars of the profession, leaders who bring enthusiasm to their work while meeting pressure with professionalism, fortitude, and response over reaction. This form of leadership models true zeal in advocacy. 

Harper Lee’s character Atticus Finch in “To Kill a Mockingbird exemplifies zealous advocacy in action. When he sits outside the jail to protect his client, he is calm, collected, and unwavering in the face of threats. His courage is not theatrical; it is regulated and principled. The jail scene is only one of many moments in which Atticus demonstrates zealous advocacy — from his careful preparation to his respectful engagement — and unwavering thdelity to the rule of law. His conduct demonstrates what zeal in advocacy rightly means: advocacy anchored in enthusiasm, civility, and professionalism. 

When we choose response over reaction, we show colleagues, clients, and young lawyers that zealous advocacy is not loud, hostile, or aggressive. We model that strength can be calm, that professionalism can be thrm without being harsh, and that passion for a client’s cause can coexist with respect for everyone involved. Our profession needs more people like Atticus Finch, advocates who prove day after day that true zeal is deliberate, principled, and humane. 
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Sarah E. Kuchon, of Hohauser Kuchon, is the 93rd president of the Oakland County Bar Association.

About a year and a half ago, one of your business clients called. A customer of theirs filed for bankruptcy, and they wanted your guidance. You helped them file a Proof of Claim, noting that meaningful recovery was unlikely.

By Ronald A. Spinner and Steven A. Roach

About a year and a half ago, one of your business clients called. A customer of theirs filed for bankruptcy, and they wanted your guidance. You helped them file a Proof of Claim, noting that meaningful recovery was unlikely. You suggested the client review its records for any telltale signs that might help them identify problem cases like this one, for future preemptive action. Your client thanked you, happy to put the matter behind it.

Today, you received a call from your now anxious client. They just received a letter written on the bankrupt company’s behalf. The letter demanded that your client “return” a significant amount of money (much more than listed in its Proof of Claim) that the letter claimed your client had received in the 90 days prior to the debtor’s bankruptcy filing. The letter’s tone was almost apologetic. The letter stressed that the client did nothing wrong, but insisted that the debtor could still demand this money back, offering a slight “discount” for quick payment. 

One thing was clear:  if your client doesn’t pay soon, it will be sued. Your client is surprised and concerned (and a bit miffed). How can they do this? Can you help? 

Your client just received a “preference demand.” This article discusses what that is, why debtors make them, and the two most common defenses used to minimize exposure to them. 

“What the heck is a ‘preference?’”

The concept of “preference” dates back to old English law. Old English judges believed that debtors know when they are in trouble. When they are, debtors begin to choose which bills to pay and which to ignore. Aggressive or important creditors are paid “preferentially” over less critical ones, even though most have similar rights in an insolvency proceeding. Those paid will have received at least some funds when a bankruptcy case is eventually filed. The rest get little or nothing.

English judges thought this approach was unfair. They believed that all unsecured creditors who received funds from a debtor in the months prior to bankruptcy should pool the money received so that it can divided pro rata amongst them. This idea became enshrined in U.S. law, setting the 90-day window immediately prior to the bankruptcy filing as the lookback, or “preference,” period.  U.S. law also provided creditors with defenses, so that they would continue to work with troubled companies rather than flee at the first sign of trouble. 

The “demand letter” is the first step of the process, seeking return of funds a creditor received from the debtor. 

“So, what do I do when my client gets a letter like this?”

First, don’t panic! The defenses discussed here (and others) usually can mitigate the demand, and usually by more than the typical 5-25% discount a trustee may offer for quick payment. The two most used defenses are “subsequent new value” and “subjective ordinary course.” 

“Subsequent new value” is usually the harder of these two for a trustee to challenge, though the defense is limited in scope. Its concept is simple:  if a debtor makes a payment to a creditor, and the creditor subsequently delivers goods or services to the debtor worth as much or more than the payment, then the debtor ends up no worse off. The “new value” provided by the creditor “subsequent” to the payment replenishes the debtor’s estate. Of course, only subsequent replenishment counts, and the estate must truly benefit from these goods and services for this to apply. For instance, if goods provided are subject to an unavoidable lien, they won’t count for this defense.

The other common defense is the “subjective ordinary course of business" defense. This defense applies if a creditor’s transactions with the debtor during the preference period are very similar to those prior to the preference period. 

If the creditor did not suddenly change payment terms or start calling the debtor repeatedly for payment, and if the debtor did not suddenly start paying more slowly or quickly than before, then this defense might shield some of the debtor’s payments from recovery. 

Of course, showing that transactions were “ordinary” usually requires a bit of statistical analysis, but a good preference defense attorney can handle that. 

Attorneys who know the technical details of how these two defenses work can combine them, yielding greater savings.

The bottom line?  Preferences usually can be resolved, often without litigation

There are other defenses, of course, but suffice here to say that most preferences can be mitigated, at least to some extent.

 The best thing you can do when your client receives a demand letter like this is to connect them with a reputable preference attorney. The preference attorney can help them determine what their defenses are and what their exposure might be. A good preference defense attorney will attempt to resolve the demand through negotiation, rather than litigation, to minimize expenses. Most trustees are amenable to (and, pun intended), “prefer” such an approach. 

Sooner or later, most companies get one of these letters. The good news is that these demands can be resolved, often for far less than is demanded. While no one “prefers” to get one of these letters, it is good to know that these letters usually are not as threatening as they initially appear. 

Ronald A. Spinner is a principal at Miller Canfield whose practice focuses on bankruptcy, restructuring and insolvency, including creditor representation, distressed transactions, loan enforcement and related matters. He is known for developing practical, results-oriented strategies in complex matters, including novel issues involving Chapter 9 proceedings, preference defense and cryptocurrency in bankruptcy.

Steven A. Roach is a principal at Miller Canfield with 40 years of experience in commercial transactions, loan enforcement, restructuring and insolvency matters. He represents financial institutions, secured lenders and other clients in workouts, receiverships, bankruptcy-related disputes and complex commercial litigation.
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Reprinted with permission from the Washtenaw County Bar Association newsletter Res Ipsa Loquitur.

For the last eleven months, I’ve been saying that the American Bar Association’s commitment to diversity, equity, and inclusion is unwavering. 
The recent vote by the independent accreditation council of the ABA Section of Legal Education and Admissions to the Bar to repeal certain law school diversity and inclusion standards has raised important questions across our profession and among many ABA members. Some have asked: How can these two things be true?

By Michelle A. Behnke
ABA President

For the last eleven months, I’ve been saying that the American Bar Association’s commitment to diversity, equity, and inclusion is unwavering. 

The recent vote by the independent accreditation council of the ABA Section of Legal Education and Admissions to the Bar to repeal certain law school diversity and inclusion standards has raised important questions across our profession and among many ABA members. Some have asked: How can these two things be true?

Let me start by stating a fact that most people don’t know or understand: The council exercises separate and independent authority when carrying out its accreditation function. Under federal requirements designed to ensure autonomy, all accrediting agencies — including the accreditation council — must operate independently from the professional association. The council’s action was taken in that independent accreditation capacity. The accreditation council is separate from the ABA. Its actions do not alter the ABA’s broader mission, values or ongoing commitments.

The ABA remains committed to diversity, equity, inclusion, and equal access remains a high priority. Those principles are reflected in ABA Goal III — to eliminate bias and enhance diversity in the association, the legal profession and the justice system. 

Last year, the ABA Board of Governors reaffirmed that commitment and emphasized that full and equal participation in the profession and justice system remains central to the ABA’s work. While we know that the accreditation council’s actions will have an effect on the legal profession and who has access to a legal education, the ABA will continue its work to be inclusive and expand opportunities and access. 

Across the country, institutions are facing growing pressure around diversity and inclusion efforts. The accreditation council is among those facing pressure, as is the ABA. It is incredibly difficult for many organizations. However, this is not a moment for ambiguity for this association.

The ABA has long recognized that excellence in the legal profession and meaningful opportunity are connected, not mutually exclusive ideas. Too many talented students and young lawyers still face barriers to opportunity and advancement. To strengthen public trust in the legal system, we must expand, not narrow, pathways into the profession.

The American Bar Association, therefore, must speak clearly about the value of fairness, opportunity and equal access within the legal profession. 

Through the ABA Center for Diversity, Equity and Inclusion, and the work of many ABA entities, we will continue to support pipeline programs, mentorship, leadership development, judicial diversity and access to justice. 

Engaging in and supporting these efforts strengthens the profession and upholds equal justice under law. 

The accreditation council’s decisions to adopt, revise, amend or repeal standards are submitted for consideration to the ABA House of Delegates, the policy-making body of our association. The House process affords members the opportunity to engage in civil discourse and debate about issues important to the profession, including this one, but the vote of the House does not control the ultimate decision on the issue.

The legal profession is strongest when it draws on the experiences, talents and perspectives of people from every background and every community. 

Diversity does not weaken our profession. It deepens it. It broadens understanding, strengthens public trust and helps ensure the law serves all people fairly and fully.

The ABA will continue to speak clearly, act often and stand firmly for a profession that reflects the principles of fairness, opportunity and equal justice that define both our mission and our democracy.

Our strength as a profession has never come from sameness. It comes from the people, perspectives and experiences that together make the law stronger, trusted and more capable of serving the public.
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Michelle A. Behnke, a member of the Boardman Clark law firm in Madison, Wisconsin, is president of the American Bar Association.

(https://www.americanbar.org/news/abanews/aba-news-archives/2026/06/what-independent-accreditation-process-means/)

Legal scholar Alexander Bickel, writing in 1961, famously described the Supreme Court’s strategy of deciding not to address particular subjects as its “passive virtues.” 
But Professor Leah Litman, ’10, says that things have changed.

By Bob Needham
Michigan Law

Legal scholar Alexander Bickel, writing in 1961, famously described the Supreme Court’s strategy of deciding not to address particular subjects as its “passive virtues.” 

But Professor Leah Litman, ’10, says that things have changed.

In fact, Litman argues in a forthcoming paper that the current court’s reluctance to decide certain matters amounts to “passive vices,” which she defines as “occasions where passivity carries significant costs that Bickel either overlooked or undervalued.”

Litman recently answered five questions about the paper:

1. How and when did you start thinking about the current court’s passivity?

Two things prompted this paper. One is a previous paper that I co-wrote with Professor Dan Deacon on legalistic non-compliance. 

That was focused on occasions where the second Trump administration hasn’t complied with lower court orders even though it says it’s doing so. That led me to consider federal court principles in terms of motive—when something might be concerning because of why it’s being done. 

The second thing is the ongoing discussions about the Supreme Court’s use of the shadow docket. Some people attempt to minimize what the court has done on the shadow docket by relabeling it as the emergency docket and normalizing what the court is doing.

2. What’s an example of how the current court uses passivity?

By passivity, I mean instances where the court has made a conscious choice not to definitively decide the merits of a case while at the same time invoking a posture of deference toward the executive branch by disturbing lower court rulings that have gone against the administration. 

One example is occasions where the Supreme Court has paused lower court rulings that invalidated the administration’s attempt to cancel or rescind federal funds that had been appropriated by Congress—for things like foreign aid or medical research grants. 

Another involves various interventions where the court has suggested there has to be deference toward the executive with respect to immigration—on immigration enforcement, roundups and stops in Los Angeles, or the administration’s practice of sending people to third countries that aren’t their country of nationality or origin.

3. What effect does this have on the legal system?

First is on the separation of federal powers. The court’s interventions have often allowed the executive branch to implement really novel and sweeping expansions of executive power. That’s really important; one of the defining trends of the last century is the expansion of presidential power.

Second is minimizing the extent to which the public can engage both with the Supreme Court and with the executive branch. When the Supreme Court is doing these interventions more passively—unannounced, on the shadow docket—it’s more difficult for the media to plan for covering those decisions and to communicate what the court is doing to the public.

4. How do we evaluate when the court’s passivity might be a positive versus a negative?

We have to think about what the court’s objective purpose is. What is the court’s passivity designed to achieve, and what is it actually achieving on the ground? 

This paper isn’t focused on coming up with the definitive account of what the court’s objective purpose is. But it does suggest that a very plausible account of the court’s objective purpose—not what the justices are subjectively trying to do, but what their course of action is well suited to doing—is that the court’s passivity is designed to enable the second Trump administration, and to disempower the courts and the public from checking it.

5. Could anything be done to address this? 

One recent segment on Last Week Tonight with John Oliver was about the shadow docket.

At the end of the segment he said the time is now—the next couple years—to normalize conversations about Supreme Court reform, to get the public to believe that the Supreme Court is a political body and they need to be treated as part of the political process.

I view this project as part of a series of projects that are related to that end—trying to show the ways in which the court is acting as a political and indeed a partisan institution, and to lay the groundwork for more meaningful public conversations about the Supreme Court’s proper role in our constitutional democracy.

Scaffolding is essential on construction and renovation projects, but when something goes wrong, the consequences can be devastating. Fires, collapses, and structural failures involving scaffolding often lead to serious injuries, major property damage, and complex insurance disputes.

Scaffolding is essential on construction and renovation projects, but when something goes wrong, the consequences can be devastating. Fires, collapses, and structural failures involving scaffolding often lead to serious injuries, major property damage, and complex insurance disputes.

A recent large-scale construction fire in Denver—where more than 100 firefighters battled a multi-alarm blaze at an apartment project—highlights how quickly a construction-related incident can escalate into a multimillion-dollar loss affecting property owners, contractors, neighboring businesses, and insurers.

For businessowners, property owners, and policyholders in Michigan and across the United States, understanding scaffolding insurance coverage is critical. The question is not just what happened, but who is insured, under which policy, and for what damages.
 
Why scaffolding insurance coverage matters

Scaffolding incidents often involve multiple parties and layered insurance policies. When a loss occurs, insurers may dispute responsibility, deny coverage, or shift blame to other parties. 

Scaffolding-related claims commonly arise from:

• Fires at construction or renovation sites
• Structural collapse or instability
• Falling tools, debris, or materials
• Damage to adjacent buildings or vehicles
• Injuries to workers, pedestrians, or residents 

In dense areas like Detroit, Chicago, or surrounding Midwest cities, a single scaffolding incident can affect an entire block—leading to evacuations, business interruption, and regulatory investigations.

Common insurance policies implicated in scaffolding losses 

Understanding which insurance policies may apply is the first step toward protecting your interests.

1. Commercial General Liability (CGL) 

CGL policies often serve as the primary coverage for bodily injury and property damage caused by scaffolding accidents. But coverage disputes frequently arise over:

• Whether the damage resulted from ongoing operations or completed work
• Policy exclusions related to construction defects or fire
• Additional insured status for property owners or developers
 
2. Builder’s Risk Insurance 

Builder’s risk policies may cover damage to the structure under construction, including losses caused by fire. Insurers may still deny claims by arguing:

• Improper installation or maintenance of scaffolding
• Violations of safety codes or project specifications
• Excluded causes of loss
 
3. Professional Liability / Errors and Omissions (E&O) 

When scaffolding design, supervision, or inspection is involved, claims may extend to engineers, architects, or project managers. These cases often hinge on whether professional judgment or a construction defect caused the loss.
 
4. Excess and Umbrella Policies

Large losses frequently exceed primary policy limits. Excess and umbrella insurers may resist paying, leading to high-stakes litigation over policy language and trigger of coverage.
 
Key coverage disputes after a scaffolding incident 

Scaffolding claims often raise complex legal questions, including:

• Who qualifies as an insured or additional insured?
• Was the fire or collapse accidental or tied to an excluded peril?
• Do multiple insurers owe defense and indemnity?
• Can insurers shift responsibility through subrogation or contribution claims?

In large-scale fires like the Denver construction blaze, disputes often expand to include neighboring property owners, municipalities, and utility providers—each with separate insurance interests.
 
Practical steps after a scaffolding-related loss

If you are a property owner, contractor, or business affected by a scaffolding incident, early action is critical. Immediate steps to protect your claim include:

• Preserve contracts, insurance policies, and certificates of insurance
• Document damage with photos, videos, and expert reports
• Notify all potentially applicable insurers promptly
• Avoid recorded statements without legal guidance
• Consult counsel experienced in insurance coverage litigation
 
Attorney and Counselor Rabih Hamawi has extensive expertise in insurance coverage, business negotiations, and commercial litigation. He focuses his practice on representing businessowners, homeowners, property owners, and other insurance policyholders in fire, property damage, and insurance-coverage disputes with insurance companies and in errors-and-omissions cases against insurance agents. He can be reached at 248) 905-1133.

For the last twenty-five years, my legal practice has been devoted to bringing lawsuits against employers and employee benefit administrators who failed to provide my clients with the benefits they had rightly earned. 

By J.J. Conway
J.J. Conway Law

For the last twenty-five years, my legal practice has been devoted to bringing lawsuits against employers and employee benefit administrators who failed to provide my clients with the benefits they had rightly earned. 

There is an elegant simplicity to this aspect of employment law because benefit plans work like contracts. Like a contract, an employee’s consideration is providing work for the employer. In return, the employer pays for that work, in part through non-wage compensation such as healthcare, life insurance, retirement benefits, and disability insurance. The value of these benefits to an employee and the employee’s family has been steadily growing each year. 

Litigating these disputes has led to my forming a few biases. Forgive me, but I do not have the greatest regard for human resource departments, and there are a few insurance companies that I believe are actually bad actors, not just opponents.

But lately, I have come to empathize with my would-be adversaries ... at least a little bit.  

The world of employee benefits — or should I say this new world of benefits — is becoming increasingly complex. It is fraught with new employee expectations, and there seems to be legal peril everywhere for employers and plan managers.  Just recently, the Department of Labor (which has been beset by scandals and resignations) issued its revised enforcement priorities, which, if relied upon, may result in legal troubles down the road should a new administration come into power with different priorities.  Today’s relief from regulatory enforcement could be tomorrow’s class action lawsuit. Benefit participants, in contrast, must tailor their cases to meet the moment, but benefit plans have a decades-long horizon. 

In an employee-side litigation practice, the legal process is straightforward. An employee has a benefit plan problem. The first attempt to solve the problem is by filing a claim for benefits. If that fails, there is an internal appeal with the plan. If the problem remains unsolved, then a lawsuit is filed. Benefit litigators review existing precedents, outline their legal cases, and work to see that their clients prevail. 

In the old days, employee benefit plans only had to monitor themselves for compliance with basic Department of Labor regulations and to be mindful of unique rules in insurance and banking that applied in states where a company operated. Most plans would receive regular updates on significant developments in case law across the U.S. It was all a bit sleepy and rote. 

In 2010, that started to change, led by the massive federal law requiring that healthcare plans be brought in line with the Patient Protection and Affordable Healthcare Act (“Obamacare”). That was a huge change; so huge, in fact, that the law itself contained a built-in mechanism giving plans years to adjust the implementation deadlines. Then, the regulatory authorities repeatedly extended those deadlines even further. 

Prior to this, federal regulations for employee benefit plans had been amended only a handful of times since 1975. After Obamacare, the applicable regulations and USDOL bulletins began changing with great regularity.  

Before and after the law was passed, the Tea Party erupted with intense criticism over the law, and in turn there were hundreds of attempts to change the law, eliminate it, or repeal its most controversial provisions through litigation. Obamacare today looks nothing like it did fifteen years ago. 

This sudden charged approach to what was, essentially, an employee benefits law, has led to increased plan litigation and other challenges as when the federal government tried to impose a fiduciary standard on financial advisors across all plans and into individual investors. This fiduciary duty rule has changed so many times that it is hard to keep up. It was recently struck down again by a federal court.  

Since 2025, the pace of proposed laws affecting employee benefit plans has been on fire.  Plans are suddenly being forced to grapple with some really “out there” issues.  

Consider what today’s benefit plans must now address:

1. New, unusual, and unproven medical treatments and requests for coverage based on influencers, streamers and politics. Podcasters and the current HHS Secretary regularly provide medical advice to the public in a way that is new, untested, and complicated. Suddenly, employee benefit participants are hearing about how injecting peptides can help them live longer, lose weight, and look better. Participants are being told not to vaccinate or to vaccinate themselves and their families differently. 

(Recently, the U.S. military ruled that mandatory flu vaccinations for active-duty personnel are considered “woke” and would be discontinued.) Proven cancer drugs that may have been covered by health insurance are suddenly being labeled “investigative” by the FDA. With plan participants being told to eat saturated fats, lard, heavy meat diets, and to stop eating plant-based foods and getting vaccinated, it remains to be seen what will happen for cardiac, cancer, rheumatology, and infectious disease costs over time for those plans. Plans have to keep up with this, and if all this medical advice turns out to be wrong, there will be additional pressure put on health insurers and self-funded healthcare plans to clean up the medical mess.

2. Expensive life-changing drugs are coming to market, and their arability is certain to increase rapidly with AI technology.  Today, there are potentially lifesaving and life altering genetic therapies that are being developed by doctors and scientists, but they are funded privately and access to the drugs are at the cost of millions of dollars per treatment. “60 Minutes” recently chronicled the rapid and remarkable development of life-saving gene therapies that cost millions per dosage. The takeaway from the lengthy report was that benefit plans have no idea how to deal with this and definitely have not established sufficient cost reserves. 

3. Political backlash surrounding medical treatments and coverage. The backlash against DEI programs generally, and certain medical treatments specifically, has led to complexities in the medical treatment offerings for the LGBTQ community.  This is a completely different environment than two years ago. Moreover, the DEI fights have led to massive cuts in medical research grants to American universities. So, now healthcare innovations are being outsourced to financial investment firms or the private credit markets for development on their timetables, not in our universities using grant money.  Again, how do benefit plans forecast healthcare claims over the next 20 years and will there be a backsliding in medical treatment options which, again, promises to increase care costs?

4. Political backlash surrounding the climate and retirement plan investments. States like Florida have required their retirement benefit plans to divest in investments that are marketed to help the environment and to redirect those funds to other investments, including fossil fuels. Florida actually passed a law that prohibits any type of investment that has as an objective the improvement of environment or climate. In our current political state, this may serve as a template for aggrieved plan members who object to similar investments by their own retirement plans and wish to litigate these issues.

5. Your home is now your 401k. In the retirement realm, plan administrators may have to develop rules allowing people to put their homes into their 401(k) plans. This will require harmonizing contribution limits with lending laws and reconciling ERISA’s prohibition on collection activity against a retirement plan with legal documents such as mortgages and home refinancing. 

6. Alternative investments in 401k plans. Also in the retirement plan realm, there is a push to open 401(k) plans to cryptocurrencies, hedge funds, and other alternative investments. The proposed regulation is more than 150 pages, single-spaced, and with all sorts of scenarios that add to the confusion surrounding the rules. 

7. The use of AI in administrative services contract administration for benefit plans. This is a small headache now, which promises to become a migraine soon, if it is not figured out. It is clear that many large insurers are experimenting with AI to cut down on labor costs, but it is unclear whether that complies with ERISA’s fiduciary standard.  AI generated claims management reveals itself when a claim is paid and the Explanation of Benefits forms continue to show the claim as denied. Ultimately, these types of problems find their way back to the company. 

This is a whole lot of change in a relatively short period. Plan designers have to keep up in a fast-changing world and plan administrators have to carefully monitor what is happening across the country. But empathy only goes so far. Not to worry, ERISA litigators will be there, too, watching closely to see how the plans navigate these changes.
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John Joseph (J.J.) Conway founder of Michigan-based J.J. Conway Law, is a national employee benefits and ERISA attorney and litigator representing clients in individual cases and class action lawsuits.