Law360 (January 25, 2019, 5:03 PM EST) -- Amanda Amert, the chair of Jenner & Block LLP's ERISA litigation practice, is watching how case law develops on jury demands and pleading standards in fiduciary breach cases, and how the practice area expands as new plaintiffs' firms pop up in the growing ERISA litigation space.
The Chicago-based attorney, who was named a Law360 MVP this fall, has worked at Jenner & Block for 17 years, scoring a job at the firm in her first year out of Duke University School of Law.
Amert's firm recently nabbed victories in Employee Retirement Income Security Act class actions on behalf of Northwestern University, The Northern Trust Co., Aon Hewitt Financial Advisors LLC and Morningstar Inc.
This interview has been edited for length and clarity.
There are a number of benefits cases that have been petitioned to the U.S. Supreme Court. If you had to pick only one for the high court to take up, which would it be, and why?
The issue that I'm most interested in the court picking up is not one that's keyed up right now. It's the issue of jury demands in ERISA breach of fiduciary duty cases. I say that because we end up spending an inordinate amount of time briefing whether a plaintiff is entitled to a jury trial in an ERISA case.
The great weight of authority -- but not all of the authority -- comes out on the side that you are not entitled to a jury in an ERISA case, but there are pop-up outlier decisions where judges have found you are entitled to a jury or you might be entitled to a jury. It's a straight-up constitutional issue, and it will not be put to bed unless there's an act of Congress or the Supreme Court weighs in.
What do you think is the most urgent unanswered question in the ERISA space right now?
Jury demand is certainly a possible one, but that's more of a point of annoyance for us and our clients. I think the most urgent issue that needs to be addressed right now is the pleading standard for breach of fiduciary duty cases. It comes up in the company stock cases, which wax and wane, but are on a little bit of an uptick right now because of a recent Second Circuit decision. It also comes up in the 401(k) cases and the investment management cases.
It is not uniformly answered by the current case law. To plead a breach of fiduciary duty, you need to plead a thing that someone did that constitutes a breach, and you need to plead a resulting loss to the plan. You also need to make some kind of causal connection between those things. The standard for how much of a causal connection you need to make is really all over the map in the district courts right now.
After you were named a Law360 MVP this fall, we talked about your work on the Northwestern case. What do you see happening with these ERISA suits against universities?
If you look at the track record, the plaintiffs have done an enormously effective job in most of the cases of getting past the motion to dismiss stage, getting into discovery. From the plaintiffs' perspective, I would think those look like cases you're going to continue to pursue for a while. I certainly don't see them going away. We haven't seen more of them being filed recently -- there were a bunch of them filed at once, and then there was a set of them coming out, and that set has sort of slowed down -- but the ones that are there show pretty good signs of either getting fought out or settled at some point.
We also talked this fall about your involvement with Jenner & Block's Women's Forum, which you cochair. You mentioned a strategic planning initiative that was set to launch in January. How is that going? What's in store for 2019?
We had our rollout meeting yesterday, where we had our launch committee make their presentations, so that was terrific, and we're very excited about it ... We're really devoting [this year] to getting our strategic plan up and running. It has a lot of different pieces. We have a group of people who are focused on support and development of our women attorneys -- real professional development stuff. We have a group of people who are focusing on establishing ongoing mentoring structures within our women's forum. We're setting up multigenerational groups of lawyers who will get together and check in about all things regarding the practice of law, and we have a group working on leveraging our women's group as a client/alumni relationship development tool. It really means we get to put together a bunch of events with people we like and don't get to see as much as we want to.
Right now is compensation season at the law firm. Like most firms, we go through the process of setting people's compensation. On the support and development end of things, that's where we're focusing our intentions, trying to make that process work a little better for the women lawyers and guiding them thru the process. On the outward-facing piece, we're planning an alumni event at the Joffrey Ballet here in Chicago.
Moving onto some questions that revolve around your work as chair of Jenner & Block's ERISA litigation practice. What do you look for when hiring an ERISA litigator?
I look at it as a trifecta of [qualities] with one other thing thrown in: You have to like the person and want to spend time with them and work with them. It's not ERISA-specific, but it's really important, because you have to spend a lot of time together. The three things I'm looking for are a terrific litigation skill set, good technical knowledge of ERISA, and a good understanding of what we do as outside counsel to a client's business.
We think lawsuits are the most important thing, but ERISA litigation is rarely the central focus for our client. It's particularly important, especially at the partner level, that anyone we hire understands how what we do fits into the overall business. That's what makes us good advocates for our clients.
What kind of skills does a person need to have to be a good benefits attorney?
I think good listening skills are really, really a foundation of being a good lawyer. Listening is the thing that touches every piece of what we do. In the benefits field, specifically, I would say you need an ability to both get down in the weeds and understand very technical details of things, but also go all the way up to the 20,000-foot view and see how the technical pieces relate to the bigger picture. Not everyone has both [perspectives]. We spend a lot of time trying to cover both bases.
What is it like being an ERISA litigator right now?
There's a lot of activity in this area right now. That's an interesting trend, and for what it's worth, I think it's being driven in part by the entry of new plaintiffs firms into this area, which is a relatively recent development. It used to be that there were a handful of plaintiffs firms with expertise in ERISA, and they brought most of the class actions, but in the last year or two we've started to see more plaintiffs lawyers who have not traditionally practiced in this area but have done a lot of class action work migrating into the ERISA litigation space.
The law has gotten mature enough that the barrier to entry is a little bit lower. There's more case law out there, so plaintiffs lawyers don't need to spend as much time getting up to speed as they did a few years ago. The plaintiffs bar sees this as a growth area. I think our expectation is that at least in the near term, there's going to be more ERISA litigation, not less.