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USA Guide

ERISA Litigation — USA - Nationwide

Overview

NATIONWIDE: An Introduction to USA - Nationwide Contributed by Sidley Austin LLP

Overview – ERISA Litigation

ERISA litigation tends to come in two sizes: small and extra large. The smaller claims involve individual claims for health or retirement benefits. The larger claims involve challenges asserted on a plan-wide or even broader basis, usually using the class action device. These latter claims can pose a significant contingent liability to sponsors of large plans or the service providers or investment managers that serve them.

There are many reasons for the growth in ERISA class actions, but one of the biggest is the old maxim to “follow the dollar.” The Baby Boom generation is reaching retirement age, and the amount of money in American retirement accounts is staggering: $25 trillion in “total retirement assets,” according to the Investment Company Institute. Many of those assets are invested in ERISA plans, and the sheer size of the assets has made retirement plans a regular target of litigation.

The Supreme Court has also been active in hearing ERISA cases. In recent years, the Court has issued landmark opinions concerning church plans, “stock drop” cases, ERISA’s statute of limitations and the ongoing duty to monitor investments, preemption, and the remedies available under ERISA.

The Department of Labor, the agency with authority to enforce ERISA, has likewise taken a deep interest in ERISA litigation. In the last few months of the Obama administration, the Department of Labor promulgated a new rule about which entities qualify as a “fiduciary” under ERISA. That rule seemed poised to alter the litigation landscape, but in March 2018 a federal appeals court invalidated the rule. The rule would have created new obligations for entities that sell and market investments to ERISA plans as well as individual retirement accounts.

While the types of ERISA class actions are limited only by the level of creativity of the plaintiffs’ bar, the following are the most common.

401(k) and 403(b) Fees and Related Claims

In recent years, this has been the most active subject of litigation. Plaintiffs have filed numerous lawsuits challenging the propriety of fees charged to participants in 401(k) plans. Companies that provide administrative services such as record-keeping may be paid both by the 401(k) plan sponsor and by “revenue sharing” from mutual fund companies in which the plans invest; the latter source of revenue has been the source of extensive litigation. And plaintiffs continue to find new theories to assert against service providers and plan fiduciaries beyond the revenue sharing context. Plaintiffs have asserted claims over separate account fees, the use of proprietary funds as investment options, fees charged for, and the use and performance of, stable value and money market funds, the use of managed account services, and investment options offered through insurance company general accounts. During the past two years, a wave of new lawsuits was filed against university 403(b) plans, alleging that those plans offered investment options with excessive fees and imprudent investments.

Plaintiffs also continue to file class actions against the fiduciaries of large 401(k) and 403(b) plans, and those providing fiduciary advice to those plans. Plaintiffs in these cases generally argue that the fiduciaries responsible for the plan breached duties under ERISA by, among other things, (1) failing to adequately disclose the sources and amounts of fees associated with the plan, (2) offering more expensive “retail” mutual funds instead of less expensive “institutional” funds, (3) entering into agreements that resulted in excessive fees, and (4) failing to evaluate whether the fees paid by plans are reasonable.

“Stock Drop” Cases

Many publicly traded companies offer company stock as an investment option in their 401(k) plans. When a company files for bankruptcy or the stock price drops significantly, the plan fiduciaries sometimes become targets of class action lawsuits challenging the prudence of the decision to continue offering the stock as an investment option. The landscape for these sort of lawsuits changed in 2014, when the Supreme Court decided Fifth Third Bank v. Dudenhofer and altered the rules by which these cases are judged. Although these cases have had mixed success as courts have interpreted the Supreme Court’s decisions, the general trend has been in favor of defendants, and that trend has continued in 2017. Still, “stock drop” cases continue to be filed.

During the past year, plaintiffs have tried a new angle on stock drop cases, filing several lawsuits asserting that it was inappropriate for post-spin-off companies to retain the stock of their former parent company. These lawsuits allege not only that the stock was imprudent, but also that fiduciaries breached the duty of diversification by allowing the stock of the former parent to become too great a percentage of overall plan assets. District courts in Ohio and Missouri have dismissed these cases, but others remain pending.

Pension Plan Litigation

Employers have also been targeted in class actions challenging the design and implementation of “defined benefit” pension plans. These claims generally fall into three categories: (1) claims that the design of the plans violates one or more technical ERISA requirements, (2) claims that the plans are not being operated in compliance with their terms, and (3) claims that employers’ disclosures of plan terms or plan amendments are misleading. While the number of design-based claims has decreased in recent years due to appellate decisions and statutory changes, we continue to see operational and disclosure claims.

Health, Welfare and Retiree Benefits

Companies continue to be targets of class action lawsuits when they modify health and welfare plans. When a company seeks to terminate or change its health insurance or life insurance plans, it may be restricted by prior agreements or terms in plan documents. In addition, when a company tries to reduce or terminate retiree benefits, retirees may claim that the plan or communications issued years earlier entitle them to irrevocable, lifetime benefits. Circumstances like these have led to a steady stream of class actions. Separately, many cases challenge insurers’ policies to refuse coverage for various types of conditions and treatments.

Church Plan Litigation

Numerous cases have challenged the status of plans offered by entities affiliated with churches. Although “church plans” are exempt from ERISA, these cases claim that some church-affiliated plans do not qualify for the exemption, and have not complied with ERISA. Some of these cases have settled and others remain pending. During 2017, the Supreme Court issued an opinion resolving a key legal issue in this context, holding that a plan does not have to be established by a church to qualify for the church plan exemption. In the remaining cases, though, plaintiffs have tried to circumvent the decision.

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Morgan, Lewis & Bockius LLP - ERISA Litigation Department

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Band 1

第一等

Chambers Commentary (based on the Chambers research)

What the team is known for Preeminent ERISA litigation practice with considerable size and reach across the USA and significant experience in litigating cases before the Supreme Court. Advises on the full spectrum of contentious ERISA issues related to 401(k) plans and retiree medical class actions. Also at the forefront representing clients in the education sector in ERISA litigation involving 403(b) retirement plans.

Strengths Clients hail the firm as "the best of the best, with bet-the-company litigators, subject matter expertise, strength in multiple jurisdictions and fabulous writers."

Market commentators say the firm is "terrific," citing the "breadth and depth of the practice."

Work highlights Defended Sears Holdings in an ERISA class action challenging the decision to offer Sears stock as an investment in the company's 401(k) plan.

Represented General Electric in an ERISA class action brought by two GE retirees challenging the company’s decision to move from an employer-sponsored health plan for retirees above age 65 to a private exchange where retirees could purchase health insurance with financial assistance from GE.

Notable practitioners

Brian Ortelere serves as cochair of the firm's ERISA litigation department and handles the full range of ERISA litigation matters including defending class actions pertaining to 401(k) and 403(b) plans. Market commentators hail him as a "very formidable lawyer" and note that he "has great substantive knowledge on ERISA litigation issues."

Cochair of the firm's ERISA litigation practice Jeremy Blumenfeld concentrates on defending the administration of 401(k) savings plans as well as traditional pension and severance pay plans. Sources note that he is "a fine lawyer," adding that he is able to "handle himself very well in oral argument."

Deborah Davidson frequently represents trustees and fiduciaries in ERISA litigation involving retirement plan investments, employer securities and ESOPs. Sources note she is "very smart and very capable."

About the Team (content provided by Morgan, Lewis & Bockius LLP)

Year in and year out, there is no firm in the United States that has a greater breadth of experience and handles more complex Employee Retirement Income Security Act (ERISA) litigation than Morgan Lewis. Our practice is an integral part of the firm’s premier labor and employment practice.

Morgan Lewis’s ERISA and employee benefits litigation team defends clients in class action suits, complex matters alleging breaches of fiduciary duties, and litigation related to health, welfare, and pension benefits. Our clients are plan sponsors, fiduciaries, service providers, custodians, insurers, and others involved in employee benefits plan and plan asset administration. We represent clients across many industries, including the financial services, insurance, governmental, retail, technology, telecommunications, transportation, aviation, manufacturing, and nonprofit sectors.

We take more ERISA cases to trial and appear in more appellate litigation than any of our peers, including in the US Supreme Court. No other firm has an ERISA litigation practice that is so consistently involved in critical litigation of such magnitude and importance.

See International for more.

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O'Melveny & Myers LLP - ERISA Litigation Department

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Band 1

第一等

Chambers Commentary (based on the Chambers research)

What the team is known for Well-respected litigators covering the full spectrum of ERISA-related issues, regularly providing counsel on fiduciary responsibility and the reduction of liability risk. Acts on behalf of a varied client base including healthcare payors, retirement plan sponsors and financial services companies. Offers significant trial capabilities, as well as experience with appellate proceedings.

Work highlights Represented Walt Disney in a putative class action alleging that its 401(k) plan fiduciaries had breached their duties of prudence and loyalty by offering an allegedly improper investment option in the plan lineup, purportedly causing millions of dollars in losses to Disney employees’ retirement savings.

Defended Massachusetts Institute of Technology in a putative class action where plaintiffs alleged that MIT and other plan fiduciaries violated fiduciary duties by causing the plan to offer too many investment options and to bear allegedly excessive costs for administrative services.

Notable practitioners

The "terrific" Brian Boyle focuses his practice on representing employers and sponsors of retirement plans in high-stakes ERISA disputes. One client notes: "Brian Boyle's ability to lead large, complex litigation makes him stand out among ERISA litigators."

Shannon Barrett is well versed on fiduciary issues and has represented clients in ERISA litigation at both trial and appellate levels. One source notes that he is "very impressive and has great judgment."

Gregory Jacob is developing an impressive ERISA litigation practice, which includes a notable emphasis on representing clients in the financial services sector. His experience includes ERISA class actions and Department of Labor investigations, as well as ERISA compliance advice.

About the Team (content provided by O'Melveny & Myers LLP)

Department profile not yet provided by O'Melveny & Myers LLP. Please see their firm profile.

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Proskauer Rose LLP - ERISA Litigation Department

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Band 1

第一等

Chambers Commentary (based on the Chambers research)

What the team is known for Renowned group of litigators handling the full spectrum of employee benefits and bet-the-company ERISA litigation at an international level. Demonstrates significant expertise in church plan class actions, stock drop cases, ESOP litigation and fiduciary duty matters among a multitude of other contentious issues. Offers strength in fee litigation arising out of 401(k) and 403(b) plans.

Strengths Clients appreciate that the firm is "outstanding and achieves top results," labeling it "best in class."

Another source notes: "The firm continues to populate its ranks with high-level, intelligent, high-quality attorneys."

Work highlights Represented Princeton University in the defense of a class action lawsuit alleging breaches of fiduciary duty in connection with the record-keeping fees charged to participants of Princeton's 403(b) plan.

Acted on behalf of Wells Fargo and other defendants in an ERISA class action involving claims that the bank padded its $35 billion 401(k) plan with over-priced and under-performing target-date funds affiliated with the bank.

Notable practitioners

The "spectacular" Howard Shapiro cochairs the firm's ERISA litigation practice. He has extensive experience defending clients in litigation involving 401(k) and 403(b) plans as well as ESOPs. He also maintains a specialty in church plan cases. One client comments: "He was excellent, maybe the most responsive lawyer I have ever dealt with."

Myron Rumeld regularly defends clients in ERISA litigation, particularly cases relating to 401(k) retirement plans and ESOPs. Clients say: "He is very thorough and has an excellent litigation background."

About the Team (content provided by Proskauer Rose LLP)

Department profile not yet provided by Proskauer Rose LLP. Please see their firm profile.

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Steptoe & Johnson LLP - ERISA Litigation Department

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Band 1

第一等

Chambers Commentary (based on the Chambers research)

What the team is known for Distinguished ERISA litigation group concentrating on high-profile disputes and class actions involving a variety of issues, including breach of fiduciary duty allegations. Experienced in representing a range of investment advisers and insurance providers as well as trustees, record keepers and custodians. Offers particular expertise in fee litigation and employer stock drop cases.

Strengths One client notes: "I think Steptoe & Johnson is great, I have nothing but the highest respect for the firm. The team really has a handle on the case law and what is happening in the complicated cases."

Work highlights Defended Fleet Owners Insurance Fund as well as individual trustees in a putative class action where the plaintiffs asserted ERISA, LMRA and state law breach of contract claims based on alleged violations of the Affordable Care Act.

Represented Express Scripts in a putative class action alleging ERISA fiduciary breach and other claims arising out of a benefits plan administered by Anthem for which Express Scripts provided Pharmacy Benefit Manager services.

Notable practitioners

Paul Ondrasik co-heads the firm's ERISA, labor and employment group and maintains his reputation as "a true expert in the field." He focuses his practice on ERISA class actions, including employer stock drop cases. Clients note that "he is a tremendous lawyer, who is really practical and interfaces really well with the business. He is able to take complex issues and break them down into something people can understand."

Eric Serron litigates cases involving alleged breaches of ERISA fiduciary rules, and also advises clients on ERISA compliance. Clients say: "Eric is tremendously detailed, organized, very smart and pretty much knows everything going on in the ERISA litigation world."

About the Team (content provided by Steptoe & Johnson LLP)

Department profile not yet provided by Steptoe & Johnson LLP. Please see their firm profile.

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Gibson, Dunn & Crutcher LLP - ERISA Litigation Department

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Band 2

第二等

Chambers Commentary (based on the Chambers research)

What the team is known for Recommended for its ability to assist with the full scope of employee benefits and executive compensation concerns, including ERISA litigation. Provides an interdisciplinary approach to prominent cases regarding a variety of issues, including prohibited transaction exemptions and ERISA preemption disputes. Has recently been active advising clients on the Department of Labor's new fiduciary rule.

Strengths The firm is described as "really terrific" by one market commentator.

Work highlights Represented Aetna Life Insurance in a putative ERISA class action in which the plaintiffs challenged the company's decision to deny coverage under their health plans for stays at residential treatment facilities.

Continued to defend the University of Southern California in a putative class action involving allegations that USC breached its fiduciary duty under ERISA in the way it administered its retirement program.

Notable practitioners

Paul Blankenstein frequently handles complex ERISA matters as part of his broad litigation practice. He is particularly active in defending breach of fiduciary duty cases.

About the Team (content provided by Gibson, Dunn & Crutcher LLP)

To learn more about our practice, please visit gibsondunn.com.

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Goodwin - ERISA Litigation Department

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Band 2

第二等

Chambers Commentary (based on the Chambers research)

What the team is known for Renowned for its robust representation of clients from the financial services sector, including insurers and investment managers, in a broad range of ERISA litigation at both trial and appellate levels, as well as arbitral proceedings. Handles the full scope of contentious issues including stock drop cases, retirement benefits disputes and issues of fiduciary liability. Recent experience includes large-scale fee litigation.

Strengths Sources say: "Goodwin is known for the quality of its work. It has extremely talented lawyers."

One client comments: "My overall impression of the firm has been very positive. They are very responsive, thoughtful and understands our business, which really helps. The firm has highly qualified legal minds."

Work highlights Defended American Century and its affiliates in a putative class action filed in the Western District of Missouri involving the use of its proprietary funds for its employees’ 401(k) plan.

Notable practitioners

James Fleckner chairs the firm's ERISA litigation practice and primarily focuses on representing financial services companies and plan sponsors in ERISA class actions, including excessive fee litigation. One source comments that he is "an incredible litigator. He crafts persuasive arguments, is quick on his feet and is able to explain complex subjects to the court in an easy-to-understand fashion."

Alison Douglass handles a broad range of ERISA-related litigation, including representing financial services companies in fee litigation and disputes pertaining to fiduciary obligations. One client notes: "She has a great grasp of a case's details and is able to anticipate how the other side will try to respond to her arguments, and then she preemptively vitiates the response." Another reports that "her strength is her ability to communicate complicated concepts in a simple to understand way," adding that "she is very engaging."

About the Team (content provided by Goodwin)

Department profile not yet provided by Goodwin. Please see their firm profile.

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Groom Law Group - ERISA Litigation Department

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Band 2

第二等

Chambers Commentary (based on the Chambers research)

What the team is known for Boutique firm with a group of talented litigators handling all manner of contentious employee benefits and executive compensation matters. Provides assistance with the full range of litigation under ERISA including church plan and stock drop cases, alleged breaches of fiduciary duty and ESOP disputes. Offers notable expertise in fee litigation pertaining to 401(k) plans and Department of Labor investigations.

Strengths One client appreciates "the depth of experience and expertise that the Groom Law Group has," and also notes: "Being represented by the Groom Law Group gives the client immediate credibility."

Another source praises the firm's "level of sophistication" and "deep expertise in this area."

Work highlights Defended Catholic Health Initiatives, in a class action lawsuit claiming that the organization’s retirement plan did not qualify as a “church plan” exempt from ERISA.

Represented Greenbax Enterprises and Piggly Wiggly Carolina Company in a putative class action lawsuit asserting claims for breach of fiduciary duty and prohibited transactions under ERISA, among other violations concerning an ESOP for the employees of Greenbax and Piggly Wiggly.

Notable practitioners

The "excellent" Lars Golumbic focuses his practice on ERISA litigation including 401(k) stock drop and excessive fee claims as well as cases involving ESOPs. He represents healthcare systems on church plan litigation, as well as acting on behalf of plan sponsors and other service providers in relation to ERISA litigation.

Michael Prame frequently represents fiduciaries and other financial services providers in complex ERISA class actions. One client praises him as "a very good lawyer," highlighting his "knowledge of ERISA, his preparedness for every case, his intelligence, his tenacity and his good bedside manner."

About the Team (content provided by Groom Law Group)

Department profile not yet provided by Groom Law Group. Please see their firm profile.

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Sidley Austin LLP - ERISA Litigation Department

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Band 2

第二等

Chambers Commentary (based on the Chambers research)

What the team is known for Acclaimed litigation group acting for large public and private corporations in all manner of ERISA disputes and class actions. Exhibits interdisciplinary cohesion across its employee benefits and appellate departments to fully cover its clients' needs on matters such as alleged breaches of fiduciary responsibility. Particular strength in the representation of insurance companies.

Strengths One client notes that "the work has been superb," explaining that the firm's "legal briefs are cogent, tight and utterly persuasive, like reading a terrific work of prose," and adding that "Sidley is a pleasure to work with and I would highly recommend its ERISA litigation attorneys."

Another client highlights the firm's "ability to be strategic, think around corners and expect what's next."

Work highlights Represented Galliard Capital Management in a putative class action challenging the management of a stand-alone stable value fund offered to CVS 401(k) plan participants.

Defended Merrill Lynch in a putative class action brought by a former litigation partner in a law firm who was dissatisfied with fees associated with his employer’s 401(k) plan.

Notable practitioners

Mark Blocker focuses his practice on litigating a variety of ERISA class actions including fees and stock drop cases pertaining to 401(k) plans. Sources say: "He is a very good lawyer; analytical and an extremely strong, excellent writer." One client comments: "He always amazes me with the amount of information he carries around in his head."

Leader of the firm's ERISA litigation practice Anne Rea handles complex ERISA litigation on behalf of organizations, plans and fiduciaries. One client notes that she is "a true expert in the field but is also very competent at explaining these complicated terms in normal language. She does a very nice job of unpacking complexities." Another source says: "She has a lot of technical expertise and is excellent at managing relationships."

About the Team (content provided by Sidley Austin LLP)

For more information on the practice, please visit the practice's page at: https://www.sidley.com/en/services/erisa-litigation

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Alston & Bird LLP - ERISA Litigation Department

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Band 3

第三等

Chambers Commentary (based on the Chambers research)

What the team is known for Well-reputed team litigating ERISA class actions and individual claims across a range of issues, with particularly stellar success in employer stock, fee-based litigation pertaining to 401(k) and 403(b) plans. Fields a number of experienced trial attorneys regularly sought after by major corporations and financial services providers. Also counsels clients facing Department of Labor investigations.

Strengths One market commentator notes that the firm has a "great ERISA practice, which is also pretty deep."

Work highlights Defended Brown University in a putative class action brought by participants in the Brown University Deferred Vesting Retirement Plan, who allege that the university violated ERISA fiduciary duties of loyalty and prudence by selecting or maintaining investments with unreasonable administrative fees.

Represented Coca-Cola in an action filed by a former labor services provider, Transport Drivers, alleging that Coca-Cola should pay ERISA withdrawal liability imposed on it by the Teamsters’ Minneapolis Food Industry Pension Fund as a result of employees from Transport Drivers undertaking duties at a Coca-Cola bottling facility.

Notable practitioners

The "terrific" Douglas Hinson chairs the firm's ERISA litigation group and frequently defends breach of fiduciary duty cases, including excessive fees cases. Market commentators note that he is "very thoughtful in how he handles cases."

About the Team (content provided by Alston & Bird LLP)

Department profile not yet provided by Alston & Bird LLP. Please see their firm profile.

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Covington & Burling LLP - ERISA Litigation Department

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Band 3

第三等

Chambers Commentary (based on the Chambers research)

What the team is known for Recognized for handling high-profile ERISA litigation matters in the Supreme Court and Courts of Appeal, particularly in the area of stock drop and pension de-risking cases. Provides robust support at all stages of the litigation process, from regulatory compliance counseling to jury trials, with notable experience litigating claims related to the administration of benefit plans.

Notable practitioners

Robert Newman is a key contact.

About the Team (content provided by Covington & Burling LLP)

Department profile not yet provided by Covington & Burling LLP. Please see their firm profile.

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Jenner & Block LLP - ERISA Litigation Department

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Band 3

第三等

Chambers Commentary (based on the Chambers research)

What the team is known for Handles complex ERISA litigation including breach of fiduciary claims and excessive fee claims relating to 401(k) retirement plans. Also advises clients on ERISA enforcement actions brought by the Department of Labor.

Strengths One client comments: "I like the firm's breadth of expertise in this particular area. I know when I go to Jenner & Block, I'm going to get reliable counsel."

Another source says: "The firm has great broad-based litigation expertise but the litigators also have a good understanding of the substantive subject matter that is being litigated."

Work highlights Represented Dow Chemical in a putative class action brought by a former employee challenging the manner in which pension benefits are calculated for certain Dow retirees.

Acted for Northwestern University in a class action lawsuit challenging the administrative and investment management fees charged to Northwestern's retirement plan and challenging some of the plan's investment features.

Notable practitioners

Chair of the ERISA litigation practice Amanda Amert is a key contact.

About the Team (content provided by Jenner & Block LLP)

Our ERISA litigation team is a multi-disciplinary group that defends complex class actions, handles ERISA-related bankruptcy claims, and works hand-in-hand with clients to provide executive- and board-level counseling. Our trial lawyers’ approach to the highly technical ERISA litigation space is uniquely able to deliver outstanding results for our clients. We represent ERISA plan sponsors and fiduciaries, as well as ERISA plan service providers. ERISA lawsuits are on the rise, and we are well-equipped to provide clients with training on putting processes in place to provide the best possible defenses to breach of fiduciary duty claims.

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Jones Day - ERISA Litigation Department

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Band 3

第三等

Chambers Commentary (based on the Chambers research)

What the team is known for Formidable group representing major corporations and administrators of benefit plans in a variety of ERISA litigation, and demonstrating significant oral advocacy skills before district and appeals courts. Assists with the full range of issues related to fiduciary duty defined benefit plans and ERISA preemption issues. Particularly active in cases involving withdrawal liability.

Work highlights Defended The New York Times in litigation involving an assessment of partial withdrawal liability by the Newspaper and Mail Deliverers’ Publishers’ Pension Fund against the Times.

Represented C&S Wholesale Grocers in litigation involving the assessment of $184 million of withdrawal liability against C&S and its former subsidiary, Erie Logistics, by the New York State Teamsters Conference Pension and Retirement Fund.

Notable practitioners

Evan Miller frequently litigates employee benefits matters including withdrawal liability cases, and also advises on pension de-risking transactions. His clients include corporate plan sponsors and ERISA fiduciaries.

Sara Pikofsky receives praise for her "good breadth and depth of knowledge." She litigates fiduciary breach and prohibited transaction cases as part of her broad ERISA litigation practice, which also includes regulatory enforcement and advisory matters.

About the Team (content provided by Jones Day)

Department profile not yet provided by Jones Day. Please see their firm profile.

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Miller & Chevalier Chartered - ERISA Litigation Department

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Band 3

第三等

Chambers Commentary (based on the Chambers research)

What the team is known for Noteworthy practice highly sought after for its expertise in handling a range of healthcare and pension-related litigation brought under ERISA, including challenges to benefit plans and preemption claims. Well known for its experience in class action litigation, often acting for healthcare insurers and network healthcare providers before trial and appellate courts.

Strengths Interviewees highlight the firm's "excellent grasp of ERISA law," and describe it as an "excellent firm."

One client notes that "in every case, Miller & Chevalier has been committed to doing the right thing for its clients."

Work highlights Represented Delta Pilots' Pension Preservation Organization in a broad challenge under ERISA to PBGC's administration of their pension plan, which was terminated in distress at the time of Delta Air Lines’ bankruptcy in 2006.

Defended Blue Cross Blue Shield of Arizona in an ERISA suit brought by a group of healthcare providers alleging violations of the Affordable Care Act and ERISA.

Notable practitioners

Anthony Shelley is a well-regarded ERISA attorney, with extensive expertise in health and pension benefits. He regularly handles class actions involving benefits denials and fiduciary matters. One source says: "Tony is as sharp an ERISA attorney as there is in the country."

About the Team (content provided by Miller & Chevalier Chartered)

Our Employee Benefits practice offers a full range of consulting, planning, and controversy services to clients facing the challenges of increased audit and regulatory scrutiny in the benefits area, including the related payroll tax and information reporting obligations. The practice features significant ERISA litigation capabilities, as well as policy experience, which is critical in a business environment characterized by tremendous regulatory and legislative change. The practice, which was named Chambers & Partners' 2015 USA Employee Benefits & Executive Compensation Team of the Year, comprises seven foundational practices: (1) Health & Welfare Plan Counseling (including ACA implementation); (2) Qualified Plan Counselling; (3) DOL Investigations & Compliance; (4) Payroll Taxes, Fringe Benefits, and Information Reporting; (5) Executive Compensation; (6) ERISA Litigation; and (7) PBGC Counseling and Controversy. Armed with an "inside the Beltway" team that includes former senior IRS and DOL officials, the firm routinely helps its clients navigate Washington bureaucracy and successfully resolve issues before they develop into costly legal problems.

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Paul, Weiss, Rifkind, Wharton & Garrison LLP - ERISA Litigation Department

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Band 3

第三等

Chambers Commentary (based on the Chambers research)

What the team is known for Routinely acts on behalf of fiduciaries and plan sponsors in complex ERISA litigation, with particularly significant expertise in representing financial institutions and service providers. Argues high-stakes class action and individual claims before the Supreme Court and courts of appeals, with notable experience in seminal stock drop cases and an increasing focus on excessive fees litigation.

Work highlights Represented Citigroup in claims brought by retirement plan participants alleging that the defendants should not have allowed them to invest in Citigroup stock from 2008 through 2009, when the value of their investments allegedly dropped by more than $1.5 billion.

Acted on behalf of JPMorgan Chase in proceedings brought by various state and federal regulators, and ERISA class action arising out of allegations of mutual fund market timing.

Notable practitioners

Lewis Clayton is regarded as a "fine litigator," who has a strong track record of handling ERISA class actions. He principally represents clients in the financial services sector and has experience in trial and appellate courts.

About the Team (content provided by Paul, Weiss, Rifkind, Wharton & Garrison LLP)

Department profile not yet provided by Paul, Weiss, Rifkind, Wharton & Garrison LLP. Please see their firm profile.

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Seyfarth Shaw LLP - ERISA Litigation Department

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Band 3

第三等

Chambers Commentary (based on the Chambers research)

What the team is known forAssists numerous employers with disputes connected to routine and high-profile ERISA matters such as 401(k) plan fee disputes, stock drop cases and challenges to pension plans. Offers substantial expertise in breach of fiduciary duty as well as withdrawal liability cases. Complemented by the strength of its employee benefits and executive compensation group.

Strengths One client notes that "Seyfarth is a great firm with great lawyers," adding that "the firm provides consistently good and thoughtful service. Also, their responsiveness, firm-wide, is second to none."

Sources also state that the firm offers "a very good breadth of practice."

Work highlights Represented Kaiser Foundation Health Plan in litigation filed by a medical air transportation company alleging unfair competition, tortious interference with contract, defamation and trade libel, arising out of the Kaiser Foundation's alleged communications to members and third parties about the air ambulance company and its rates.

Represented Resolute Forest Products in a claim brought by United Steelworkers and two retired employees, on behalf of a class of retirees alleging a breach of a collective bargaining agreement and seeking to upend the company’s decision to move retirees to a healthcare spending account.

Notable practitioners

Ward Kallstrom is "very knowledgeable" about ERISA and employee benefits law and has considerable experience acting in complex ERISA class actions. His expertise includes excessive fee litigation and breach of fiduciary matters.

Mark Casciari has extensive experience representing employers, plan sponsors and fiduciaries in ERISA class actions. He maintains particular expertise in withdrawal liability matters. Clients say: "Mark is a good strategist and a good tactician. He is able to pull back from technical issues and look at things from a business perspective."

About the Team (content provided by Seyfarth Shaw LLP)

Seyfarth has an extensive, dynamic employee benefits litigation practice, with attorneys in each of the firm’s offices nationwide who have successfully litigated ERISA and other employee benefits cases. The employee benefits litigation practice has significant in-depth experience in all aspects of benefits litigation, including single plaintiff and class action benefit claims, fiduciary duty, discrimination, reporting and disclosure, pension and welfare plan interpretation, executive compensation and stock options, and multiemployer plan claims. Our full-service litigation practice extends to complex issues such as class-action law and procedure, ERISA pre-emption and ERISA’s relationship to state laws, and the nuances of the ERISA remedial scheme.





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Overview

NATIONWIDE: An Introduction to USA - Nationwide Contributed by Sidley Austin LLP

Overview – ERISA Litigation

ERISA litigation tends to come in two sizes: small and extra large. The smaller claims involve individual claims for health or retirement benefits. The larger claims involve challenges asserted on a plan-wide or even broader basis, usually using the class action device. These latter claims can pose a significant contingent liability to sponsors of large plans or the service providers or investment managers that serve them.

There are many reasons for the growth in ERISA class actions, but one of the biggest is the old maxim to “follow the dollar.” The Baby Boom generation is reaching retirement age, and the amount of money in American retirement accounts is staggering: $25 trillion in “total retirement assets,” according to the Investment Company Institute. Many of those assets are invested in ERISA plans, and the sheer size of the assets has made retirement plans a regular target of litigation.

The Supreme Court has also been active in hearing ERISA cases. In recent years, the Court has issued landmark opinions concerning church plans, “stock drop” cases, ERISA’s statute of limitations and the ongoing duty to monitor investments, preemption, and the remedies available under ERISA.

The Department of Labor, the agency with authority to enforce ERISA, has likewise taken a deep interest in ERISA litigation. In the last few months of the Obama administration, the Department of Labor promulgated a new rule about which entities qualify as a “fiduciary” under ERISA. That rule seemed poised to alter the litigation landscape, but in March 2018 a federal appeals court invalidated the rule. The rule would have created new obligations for entities that sell and market investments to ERISA plans as well as individual retirement accounts.

While the types of ERISA class actions are limited only by the level of creativity of the plaintiffs’ bar, the following are the most common.

401(k) and 403(b) Fees and Related Claims

In recent years, this has been the most active subject of litigation. Plaintiffs have filed numerous lawsuits challenging the propriety of fees charged to participants in 401(k) plans. Companies that provide administrative services such as record-keeping may be paid both by the 401(k) plan sponsor and by “revenue sharing” from mutual fund companies in which the plans invest; the latter source of revenue has been the source of extensive litigation. And plaintiffs continue to find new theories to assert against service providers and plan fiduciaries beyond the revenue sharing context. Plaintiffs have asserted claims over separate account fees, the use of proprietary funds as investment options, fees charged for, and the use and performance of, stable value and money market funds, the use of managed account services, and investment options offered through insurance company general accounts. During the past two years, a wave of new lawsuits was filed against university 403(b) plans, alleging that those plans offered investment options with excessive fees and imprudent investments.

Plaintiffs also continue to file class actions against the fiduciaries of large 401(k) and 403(b) plans, and those providing fiduciary advice to those plans. Plaintiffs in these cases generally argue that the fiduciaries responsible for the plan breached duties under ERISA by, among other things, (1) failing to adequately disclose the sources and amounts of fees associated with the plan, (2) offering more expensive “retail” mutual funds instead of less expensive “institutional” funds, (3) entering into agreements that resulted in excessive fees, and (4) failing to evaluate whether the fees paid by plans are reasonable.

“Stock Drop” Cases

Many publicly traded companies offer company stock as an investment option in their 401(k) plans. When a company files for bankruptcy or the stock price drops significantly, the plan fiduciaries sometimes become targets of class action lawsuits challenging the prudence of the decision to continue offering the stock as an investment option. The landscape for these sort of lawsuits changed in 2014, when the Supreme Court decided Fifth Third Bank v. Dudenhofer and altered the rules by which these cases are judged. Although these cases have had mixed success as courts have interpreted the Supreme Court’s decisions, the general trend has been in favor of defendants, and that trend has continued in 2017. Still, “stock drop” cases continue to be filed.

During the past year, plaintiffs have tried a new angle on stock drop cases, filing several lawsuits asserting that it was inappropriate for post-spin-off companies to retain the stock of their former parent company. These lawsuits allege not only that the stock was imprudent, but also that fiduciaries breached the duty of diversification by allowing the stock of the former parent to become too great a percentage of overall plan assets. District courts in Ohio and Missouri have dismissed these cases, but others remain pending.

Pension Plan Litigation

Employers have also been targeted in class actions challenging the design and implementation of “defined benefit” pension plans. These claims generally fall into three categories: (1) claims that the design of the plans violates one or more technical ERISA requirements, (2) claims that the plans are not being operated in compliance with their terms, and (3) claims that employers’ disclosures of plan terms or plan amendments are misleading. While the number of design-based claims has decreased in recent years due to appellate decisions and statutory changes, we continue to see operational and disclosure claims.

Health, Welfare and Retiree Benefits

Companies continue to be targets of class action lawsuits when they modify health and welfare plans. When a company seeks to terminate or change its health insurance or life insurance plans, it may be restricted by prior agreements or terms in plan documents. In addition, when a company tries to reduce or terminate retiree benefits, retirees may claim that the plan or communications issued years earlier entitle them to irrevocable, lifetime benefits. Circumstances like these have led to a steady stream of class actions. Separately, many cases challenge insurers’ policies to refuse coverage for various types of conditions and treatments.

Church Plan Litigation

Numerous cases have challenged the status of plans offered by entities affiliated with churches. Although “church plans” are exempt from ERISA, these cases claim that some church-affiliated plans do not qualify for the exemption, and have not complied with ERISA. Some of these cases have settled and others remain pending. During 2017, the Supreme Court issued an opinion resolving a key legal issue in this context, holding that a plan does not have to be established by a church to qualify for the church plan exemption. In the remaining cases, though, plaintiffs have tried to circumvent the decision.

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Band 1

O'Melveny & Myers LLP

From the Chambers USA guide

The "terrific" Brian Boyle focuses his practice on representing employers and sponsors of retirement plans in high-stakes ERISA disputes. One client notes: "Brian Boyle's ability to lead large, complex litigation makes him stand out among ERISA litigators."

^ See whole ranking table

Band 1

Steptoe & Johnson LLP

From the Chambers USA guide

Paul Ondrasik co-heads the firm's ERISA, labor and employment group and maintains his reputation as "a true expert in the field." He focuses his practice on ERISA class actions, including employer stock drop cases. Clients note that "he is a tremendous lawyer, who is really practical and interfaces really well with the business. He is able to take complex issues and break them down into something people can understand."

^ See whole ranking table

Band 1

Morgan, Lewis & Bockius LLP

From the Chambers USA guide

Brian Ortelere serves as cochair of the firm's ERISA litigation department and handles the full range of ERISA litigation matters including defending class actions pertaining to 401(k) and 403(b) plans. Market commentators hail him as a "very formidable lawyer" and note that he "has great substantive knowledge on ERISA litigation issues."

^ See whole ranking table

Band 1

Proskauer Rose LLP

From the Chambers USA guide

The "spectacular" Howard Shapiro cochairs the firm's ERISA litigation practice. He has extensive experience defending clients in litigation involving 401(k) and 403(b) plans as well as ESOPs. He also maintains a specialty in church plan cases. One client comments: "He was excellent, maybe the most responsive lawyer I have ever dealt with."

^ See whole ranking table

Band 2

Jeremy P Blumenfeld

Morgan, Lewis & Bockius LLP

From the Chambers USA guide

Cochair of the firm's ERISA litigation practice Jeremy Blumenfeld concentrates on defending the administration of 401(k) savings plans as well as traditional pension and severance pay plans. Sources note that he is "a fine lawyer," adding that he is able to "handle himself very well in oral argument." 

^ See whole ranking table

Band 2

Goodwin

From the Chambers USA guide

James Fleckner chairs the firm's ERISA litigation practice and primarily focuses on representing financial services companies and plan sponsors in ERISA class actions, including excessive fee litigation. One source comments that he is "an incredible litigator. He crafts persuasive arguments, is quick on his feet and is able to explain complex subjects to the court in an easy-to-understand fashion."

^ See whole ranking table

Band 2

Groom Law Group

From the Chambers USA guide

The "excellent" Lars Golumbic focuses his practice on ERISA litigation including 401(k) stock drop and excessive fee claims as well as cases involving ESOPs. He represents healthcare systems on church plan litigation, as well as acting on behalf of plan sponsors and other service providers in relation to ERISA litigation.

^ See whole ranking table

Band 2

Alston & Bird LLP

From the Chambers USA guide

The "terrific" Douglas Hinson chairs the firm's ERISA litigation group and frequently defends breach of fiduciary duty cases, including excessive fees cases. Market commentators note that he is "very thoughtful in how he handles cases."

^ See whole ranking table

Band 2

Seyfarth Shaw LLP

From the Chambers USA guide

Ward Kallstrom is "very knowledgeable" about ERISA and employee benefits law and has considerable experience acting in complex ERISA class actions. His expertise includes excessive fee litigation and breach of fiduciary matters.

^ See whole ranking table

Band 2

Groom Law Group

From the Chambers USA guide

Michael Prame frequently represents fiduciaries and other financial services providers in complex ERISA class actions. One client praises him as "a very good lawyer," highlighting his "knowledge of ERISA, his preparedness for every case, his intelligence, his tenacity and his good bedside manner."

^ See whole ranking table

Band 2

Mayer Brown LLP

From the Chambers USA guide

Nancy Ross of Mayer Brown LLP cochairs the firm's ERISA litigation practice and is an experienced practitioner in this area. She represents employers and fiduciaries in relation to disputes arising out of 401(k) and ESOPs.

^ See whole ranking table

Band 2

Proskauer Rose LLP

From the Chambers USA guide

Myron Rumeld regularly defends clients in ERISA litigation, particularly cases relating to 401(k) retirement plans and ESOPs. Clients say: "He is very thorough and has an excellent litigation background."

^ See whole ranking table

Band 2

Miller & Chevalier Chartered

From the Chambers USA guide

Anthony Shelley is a well-regarded ERISA attorney, with extensive expertise in health and pension benefits. He regularly handles class actions involving benefits denials and fiduciary matters. One source says: "Tony is as sharp an ERISA attorney as there is in the country."

^ See whole ranking table

Band 3

O'Melveny & Myers LLP

From the Chambers USA guide

Shannon Barrett is well versed on fiduciary issues and has represented clients in ERISA litigation at both trial and appellate levels. One source notes that he is "very impressive and has great judgment."

^ See whole ranking table

Band 3

Paul Blankenstein

Gibson, Dunn & Crutcher LLP

From the Chambers USA guide

Paul Blankenstein frequently handles complex ERISA matters as part of his broad litigation practice. He is particularly active in defending breach of fiduciary duty cases.

^ See whole ranking table

Band 3

Sidley Austin LLP

From the Chambers USA guide

Mark Blocker focuses his practice on litigating a variety of ERISA class actions including fees and stock drop cases pertaining to 401(k) plans. Sources say: "He is a very good lawyer; analytical and an extremely strong, excellent writer." One client comments: "He always amazes me with the amount of information he carries around in his head."

^ See whole ranking table

Band 3

McDermott Will & Emery LLP

From the Chambers USA guide

Bill Boies of McDermott Will & Emery LLP frequently represents clients such as plan sponsors and fiduciaries in ERISA class actions. His experience includes high-profile breach of fiduciary duty and stock drop cases.

^ See whole ranking table

Band 3

Seyfarth Shaw LLP

From the Chambers USA guide

Mark Casciari has extensive experience representing employers, plan sponsors and fiduciaries in ERISA class actions. He maintains particular expertise in withdrawal liability matters. Clients say: "Mark is a good strategist and a good tactician. He is able to pull back from technical issues and look at things from a business perspective."

^ See whole ranking table

Band 3

Paul, Weiss, Rifkind, Wharton & Garrison LLP

From the Chambers USA guide

Lewis Clayton is regarded as a "fine litigator," who has a strong track record of handling ERISA class actions. He principally represents clients in the financial services sector and has experience in trial and appellate courts.

^ See whole ranking table

Band 3

Morgan, Lewis & Bockius LLP

From the Chambers USA guide

Deborah Davidson frequently represents trustees and fiduciaries in ERISA litigation involving retirement plan investments, employer securities and ESOPs. Sources note she is "very smart and very capable."

^ See whole ranking table

Band 3

Goodwin

From the Chambers USA guide

Alison Douglass handles a broad range of ERISA-related litigation, including representing financial services companies in fee litigation and disputes pertaining to fiduciary obligations. One client notes: "She has a great grasp of a case's details and is able to anticipate how the other side will try to respond to her arguments, and then she preemptively vitiates the response." Another reports that "her strength is her ability to communicate complicated concepts in a simple to understand way," adding that "she is very engaging."

^ See whole ranking table

Band 3

Caroline Turner English

Arent Fox LLP

From the Chambers USA guide

Caroline Turner English of Arent Fox LLP is noted for her representation of healthcare providers in litigation involving health benefit plans. She is also knowledgeable about pension plans and fiduciary obligations.

^ See whole ranking table

Band 3

O'Melveny & Myers LLP

From the Chambers USA guide

Gregory Jacob is developing an impressive ERISA litigation practice, which includes a notable emphasis on representing clients in the financial services sector. His experience includes ERISA class actions and Department of Labor investigations, as well as ERISA compliance advice.

^ See whole ranking table

Band 3

Dorsey & Whitney LLP

From the Chambers USA guide

Steven Lucke of Dorsey & Whitney LLP maintains broad expertise in retirement and health benefits plans. He regularly handles breach of fiduciary duty and stock drop cases. Clients note: "He has vast experience as an ERISA litigator, he is well respected in the legal community and is a very easy person to work with."

^ See whole ranking table

Band 3

Jones Day

From the Chambers USA guide

Evan Miller frequently litigates employee benefits matters including withdrawal liability cases, and also advises on pension de-risking transactions. His clients include corporate plan sponsors and ERISA fiduciaries.

^ See whole ranking table

Band 3

Weil, Gotshal & Manges LLP

From the Chambers USA guide

Nicholas Pappas of Weil, Gotshal & Manges LLP regularly defends clients in class actions involving 401(k) and healthcare benefit plans. His ERISA expertise includes fiduciary duties, disclosure obligations and benefit accrual. One client reports that "Nicholas parachuted into a complex ERISA class action case, got up to speed very quickly and assisted us in crafting a creative strategy."

^ See whole ranking table

Band 3

Jones Day

From the Chambers USA guide

Sara Pikofsky receives praise for her "good breadth and depth of knowledge." She litigates fiduciary breach and prohibited transaction cases as part of her broad ERISA litigation practice, which also includes regulatory enforcement and advisory matters.

^ See whole ranking table

Band 3

Sidley Austin LLP

From the Chambers USA guide

Leader of the firm's ERISA litigation practice Anne Rea handles complex ERISA litigation on behalf of organizations, plans and fiduciaries. One client notes that she is "a true expert in the field but is also very competent at explaining these complicated terms in normal language. She does a very nice job of unpacking complexities." Another source says: "She has a lot of technical expertise and is excellent at managing relationships."

^ See whole ranking table

Band 3

Steptoe & Johnson LLP

From the Chambers USA guide

Eric Serron litigates cases involving alleged breaches of ERISA fiduciary rules, and also advises clients on ERISA compliance. Clients say: "Eric is tremendously detailed, organized, very smart and pretty much knows everything going on in the ERISA litigation world."

^ See whole ranking table

Up and Coming

Mayer Brown LLP

From the Chambers USA guide

Brian Netter of Mayer Brown LLP has experience handling ERISA litigation at trial and appellate levels. His recent experience includes defending challenges to the administration of 401(k) and 403(b) plans. Clients appreciate his "top-notch written product" and he also receives praise for his responsiveness.

^ See whole ranking table