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As the media and the plaintiff bar have increased their attention on retirement and health benefits, and employees have become more aware of litigation in this area, there has been a corresponding increase in individual and class action lawsuits. The issues that are the focus of class-action suits include: (i) revenue sharing and fee arrangements under 401(k) plans; (ii) decreases in the value of employer securities in defined contribution plans; (iii) misrepresentation and fiduciary breaches relating to a reduction in force or an early retirement "window" plan; (iv) valuation and other aspect of ESOPs; and (v) the elimination of retiree medical or retiree death benefits.

ERISA Litigation Primer
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In addition, a number of cases relate to claims involving coverage under health and welfare benefit plans. These cases often involve state law considerations and whether such laws are pre-empted by the Employee Retirement Income Security Act (ERISA).

Employers recognize the importance of retirement and health benefits to their employees and the importance of limiting risk and litigation exposure through appropriate compliance, plan governance and employee communications. Nevertheless, there are often overlapping laws that apply, and the state of the law is both complex and constantly evolving. As a result, and despite their best intentions, many employers, along with plan administrators, trustees and others, find themselves entangled in increasingly costly and time-consuming benefits-related litigation.

Scope of the Litigation Team

Epstein Becker Green has a national, dedicated ERISA/Employee Benefits litigation practice staffed with attorneys who combine a real-world understanding of the intricacies of benefit plan administration and employee benefits operation with their extensive experience as ERISA counselors and trial and appellate court litigators. The attorneys in this practice group represent employers and service providers to benefit plans, both in class-action and individual litigations. When potential litigation issues arise, these attorneys provide the practical legal advice and representation needed to resolve potential benefits disputes as quickly and efficiently as possible.

Our litigation team includes former attorneys from the Office of the Solicitor of Labor, who previously prosecuted actions brought by the Secretary of Labor to enforce ERISA, as well as former United States Attorney prosecutors. EBG attorneys, who have represented both major employers and providers (such as health providers and insurance companies), have chaired professional programs and ABA committees on ERISA fiduciary and investment-related matters. EBG attorneys also have significant experience in the ongoing administration and operation of benefit plans. This proficiency often provides an "edge" in tackling the issues that arise in benefit litigation, as well as the possible application of employment, tax and securities-related considerations.

Range of ERISA/Employee Benefits Litigation and Related Services

Epstein Becker Green attorneys have worked on many cases involving ERISA and employee benefits in a broad range of areas, including:

a. Plan Benefits and Governance. The Firm is engaged on behalf of numerous employers in cases involving benefit plans and ERISA-related claims against plan sponsors, fiduciaries and service providers. Stemming from one of its core practice groups, EBG also is involved in matters relating to multi-employer plans as well as ERISA issues arising from downsizing and reductions in force. Because many of EBG's benefit clients are plan sponsors, the Firm often is involved in audits, investigations, and other issues surrounding government agencies charged with statutory enforcement. Among these agencies are the IRS, the Department of Labor, and the Pension Benefit Guaranty Corporation.

Cases and regulatory investigations in which EBG has been involved include:

  • Breach of fiduciary duty claims, including claims related to alleged retaliation and misrepresentation or failure to properly inform by a plan fiduciary
  • Elimination of retiree medical coverage
  • Defined benefit plan amendment to eliminate a death benefit
  • ESOP operation
  • Breach of duty to supervise service providers
  • Claims under ERISA related to executive incentives, equity and deferred compensation plans
  • Disputes regarding payments under stock options, other incentives and performance-based plans and individual agreements
  • Disputes over pension and health and welfare plan contribution payments
  • Entitlement to disability, pension, death, health and welfare plan benefits, as well as to COBRA issues
  • Conversion of a defined benefit plan to a cash balance plan
  • Rescission remedy following an alleged prohibited transaction
  • Claims alleging actions intended to eliminate benefits in violation of Section 510 of ERISA.

b. Health Care. EBG has a experience in ERISA litigation matters involving another of its prominent core practice areas--health care and related sectors. These clients include insurance companies, hospitals and other providers such as managed care organizations and the services provided by these clients with respect to insured and noninsured single, multi-employer, and multiple welfare benefit plans. As much of the health care industry receives payments for its services from health plans subject to ERISA, very special issues arise that require a knowledge of the health care industry as well as of ERISA.

Examples of these cases, which include ERISA preemption matters, include:

  • Entitlement to disability, and health, as well as to related COBRA and HIPAA considerations
  • Authority of states to treat self-funded plans with stop-loss insurance as insured plans exempt from ERISA's insurance savings clause
  • Determination of the point at which payments for health benefits from an ERISA plan to a third party administrator (who in turn pays the providers) stop being "plan assets," so that the prohibited transaction provisions of ERISA are not applicable
  • The extent to which state anti-subrogation statutes apply to ERISA plans
  • Prohibited transaction issues arising out of DOL audits of different reimbursement/payment arrangements between plans, providers and different vendors and brokers of the provision of medical services for ERISA plans.

c. Multi-Employer Plans. Our litigation attorneys are also proficient in multi-employer plan-related litigation and Title IV of ERISA and ADEA. Examples of such cases include:

  • Fund-related disputes over pension and health and welfare plan contribution payments
  • PBGC single employer pension plan liability
  • MEPPA withdrawal liability
  • Fiduciary issues arising with respect to Taft-Hartley plans
  • Pension Protection Act issues
  • ADEA claims related to employee benefit plans.

d. Executive Compensation. We also have attorneys with knowledge and skills in executive compensation-related litigation. Examples of our casework include:

  • Federal district court matters relating to disputes under ERISA-deferred compensation plans (e.g., SERP benefits)
  • Litigation involving top-hat plan status under ERISA
  • Disputes regarding payments related to stock options, restricted stock and other equity based arrangements; and incentives and performance-based compensation plans
  • 409A-related disputes.

Reported Cases

Our experience includes real-world successes when ERISA cases need to be litigated. For example, Epstein Becker Green attorneys have achieved success for their clients in many unreported cases and in such reported favorable decisions as:

Eichorn v. AT&T (3rd Cir.)--upheld the employers' claims that the plaintiffs were not entitled to relief under ERISA.

Wachtel v. HealthNet (3rd Cir.)--ruled that the ERISA fiduciary exception to the attorney client privilege was not applicable.

In re Lucent Death Benefits ERISA Litig. (3rd Cir.)—putative class action challenge to elimination of retiree death benefit.

Chastain v. AT&T (10th Cir.)(pending)—class action suit by retirees of AT&T challenging subsequent elimination of retiree death benefit and certain reductions in medical and dental benefits.

Kerber v. Qwest (D. Colo.)(pending)—class action challenging changes to retiree death benefit based in plan language and misrepresentations/breach of fiduciary duty.

Tholke v. Unisys (2d Cir.)(pending)—suit for long-term disability benefits by employee.

For more information:

Visit the Employee Benefits ERISA / Labor and Employment ERISA page and Health Care and Life Sciences ERISA/Benefits page.

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