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The Supreme Court reversed.[14] The Court first noted that the FAA’s preemptive reach may extend not just to state laws that explicitly prohibit arbitration, but also to state laws that are applied in a fashion that disfavors arbitration.Likewise, the Court held that the savings clause of the FAA could not be read to preserve “state law rules that stand as an obstacle to the accomplishment of the FAA’s objectives.” Applying this standard, the Court held that requiring class arbitration would interfere with the FAA’s objectives of providing informal and streamlined proceedings to resolve disputes.Other courts have endorsed the theory that, as a representative for the beneficiaries of the plan which he is administering, the fiduciary is not the real client.In these cases, the fiduciary exception is not an “exception” to the attorney-client privilege; rather, it reflects the fact that, at least as to advice regarding plan administration, a fiduciary is not “the real client” and thus never enjoyed the privilege in the first place.Two multiemployer plans invested approximately 3% of their assets in Bernard Madoff funds, resulting in approximately a .1MM loss to the plans. During the investment decision-making process, the Board of Trustees was advised by counsel.Counsel withheld certain documents and redacted portions of other documents, claiming that the documents were protected by attorney-client and work product privileges. 2010) (rejecting defendants’ divergence argument for documents created after the initial denial letter issued and requiring the production of documents from outside counsel because, inter alia, the initial denial letter invited plaintiffs to appeal and the final denial letter stated defendants undertook a careful review of the administrative record).The panel cautioned that limits exist as to the application of the fiduciary exception. 17, 2010)[10] (holding that documents regarding settlor function issues are privileged, while ordering production of documents dealing with plan administration and investment of plan assets); Buzzanga v. One model for preserving legal privilege and work product protection is for a client to divide functions between counsel: one attorney provides plan administration advices, anticipated to be subject to discovery; a second attorney provides settlor function advices and advices in anticipation of litigation, anticipated to be privileged and confidential. Supreme Court addressed whether the Federal Arbitration Act (FAA) preempted California’s judicial rule that effectively required arbitration agreements to include the right to class arbitration for them to be enforceable.The court stated that the exception will not apply to a fiduciary’s communications with an attorney regarding his personal defense in an action for breach of fiduciary duty. Also, the panel held that communications between ERISA fiduciaries and plan attorneys regarding non-fiduciary, settlor function matters, such as adopting, amending, or terminating an ERISA plan, are not subject to the fiduciary exception. This division of tasks can take place among attorneys in the same in-house law department or in the same outside law firm. Continuing in a long line of cases that have supported arbitration, the Court held this judicial rule was preempted by the FAA since it stood as an obstacle to the accomplishment of the FAA’s objectives; the preempted rule did so because it would have required arbitrations to comply with the procedural formalities, costs, and exposures attendant on class proceedings.

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Solis, __ F.3d at __, 2011 WL 1663597 at *4.[3] Without specifying a controlling theory, the court held that the fiduciary exception to attorney-client privilege extends to communications between an ERISA trustee and a plan attorney regarding plan administration. Clients frequently pose questions as to benefit plan issues without distinguishing between whether their questions deal with settlor functions or plan administration and whether, in their client capacity, they are acting as an employer/settlor or a fiduciary.Fourth Circuit Applies the Fiduciary Exception to Legal Privilege and Work Product In Solis v.The Food Employers Labor Relations Association, No.Counsel did not submit a privilege log, asserting that documents were not produced because of contemplated future litigation. Proskauer’s Perspective This area of the law is difficult for in-house counsel and outside counsel.In a unanimous decision, the court applied the fiduciary exception to attorney-client privilege and held the plans failed to carry their burden to demonstrate the applicability of the work product doctrine. In-house counsel and outside counsel are asked questions by their clients; clients expect immediate responses.These “timing” issues recur in various cases where plan administrators consider benefit claims and defendants argue that legal documents are shielded from production because the interests of the plaintiff and plan have diverged, and/or that the documents were created in anticipation of litigation. The Concepcions filed a lawsuit in federal court that was consolidated as part of a putative class action asserting a claim related to the alleged improperly charged sales tax.