ERISA Litigation

Thursday, October 20 to Friday, October 21, 2011

New York Marriott Downtown, New York, NY

DAY ONE: Thursday, October 20, 2011

7:15 Registration & Continental Breakfast

8:00 Co-Chairs’ Welcoming Remarks

Lawrence Fine
SVP and Chief Technical Officer – Financial Lines
Chartis Claims, Inc. (New York, NY)

H. Douglas Hinson
Alston & Bird LLP (Atlanta, GA)

8:05 In-House Roundtable on Plan Sponsor Liability Issues: Managing Litigation, Limiting Fiduciary Liability and Having Your Administrative House In Order

Stephanie A. Edwards
General Attorney
AT&T Services, Inc (Dallas, TX)

Robert C. Varnell
Vice President & General Counsel
Lockheed Martin Investment Management Co. (Bethesda, MD)

R. Eric Powers, III
Corporate Counsel
Crawford & Company (Atlanta, GA)

Zachary R. Osborne
Assistant General Counsel
United Technologies Corp. (Hartford, CT)

Derek Windham
Associate General Counsel
Del Monte Foods Company (San Francisco, CA)

Kevin M. Covert
Vice President and Deputy General Counsel— Human Resources
Honeywell International, Inc. (Morristown, NJ)

Moderator
Marianne W. Culver
Ungaretti & Harris LLP (Chicago, IL)

• Due diligence & prudence in selection of service providers
• Managing PPACA compliance- Cost-effective ways to implement change- Finding independent third-party reviewers
• Recouping pension/disability overpayments
• Retained Asset Accounts- Recent litigation concerns- Understanding the DOL’s position- Using your SPD to effectively describe the practice
• Overcoming impediments to settling claims for long-term disability benefits
• Streamlining the increasing amount of permissible discovery courts will allow in conflict situations

9:15 In-House Roundtable on Service Provider liability Issues: Inside Views from tPAs, Consultants, Actuaries and Record Keepers on Problems Inherent in the Administration of Employee Benefit Plans

Margery Sinder Friedman
Senior Vice-President & General Counsel
SEGAL (Washington, D.C.)

Matthew Gnabasik
Managing Director
Blue Prarie Group (Chicago, IL)

Kevin E. Crowley
Mercer Chief Litigation Counsel - Americas
Marsh & McLennan Companies, Inc. (New York, NY)

Russell Dempsey
Vice President & Chief Legal Officer
United Retirement Plan Consultants (Dublin, OH)

Moderator
Michael J. Prame
Groom Law Group Chartered (Washington, D.C.)

• Handling the blurring of lines (and liability) between the roles of different service providers
• Responding to increased fee disclosure requirements
• Actuarial malpractice cases: What to do when benefits have been miscalculated?
• Establishing the role of investment committees v. role of the board
• Liabilities for failure to hedge/diversify and concerns about the precedent Weyerhauser could set
• Managing relationships with plan sponsors and best practices for dealing with conflicts
• Understanding the division of responsibilities and whether discretion has been granted to a service provider
• Suing service providers for systemic breaches of fiduciary duty
  • An overview in the uptick of cases
  • Will the courts allow one plan to sue on behalf of all plans serviced by a particular provider?

10:10 Morning Coffee Break

10:20 In-House Roundtable on new and Emerging Participant Disclosure Requirements, Compliance Concerns & trouble Spots After Cigna v. Amara

Renata Pompa
VP & Corporate Counsel (ERISA/Benefits)
Prudential (Newark, NJ)

Peter M. Kelly
Chief Employee Benefits Counsel
Blue Cross Blue Shield Association (Chicago, IL)

Kelli Christenson
Senior Counsel, Benefits
Kraft Foods Global, Inc. (Northfield, IL)

Moderator
Nancy G. Ross
McDermott Will & Emery LLP (Chicago, IL)

• The new remedy landscape under §502(a)(3) after Cigna: how might courts interpret equitable relief now?
• The future of SPDs and the effect on §502(a)(1)(b)
• What the ruling on detrimental reliance means for plan sponsors
• What new controversies are likely to result from this ruling?
• Participant disclosure issues: Best in-house practices for complying with requests for documents under §104(b)(4)

11:15 View from the Plaintiff’s Bar: tailoring Your Strategies to the new Waves of Claims Being Asserted

Edward G. (“Woody”) Connette
Essex Richards, P.A. (Charlotte, NC)

Lynn Lincoln Sarko
Keller Rohrback (New York, NY)

Jeffrey Lewis
Lewis, Feinberg, Lee, Renaker & Jackson, P.C. (Oakland, CA)

Michael A. Wolff
Schlichter, Bogard & Denton, LLP (St. Louis, MO)

Lori G. Feldman
Milberg LLP (New York, NY)

Moderator
Adrienne C. Publicover
Wilson Elser Moskowitz Edelman & Dicker LLP (San Francisco, CA)

• How plan sponsors should be responding to requests for information, benefits questions and conflicts with plan participants
• How the financial crisis of 2008 is shaping ERISA case law and what harms are still left to be “swept up”
• The strengths and weaknesses of defense positions in fee cases, stock drops, selection of service providers and more
• How Cigna v. Amara will change the remedies landscape
• Has Kraft changed the course of fee litigation and breathed new life into plaintiffs’ cases?

12:15 Networking Luncheon for Speakers & Delegates

1:15 gaining ground on Procedural Issues once a Suit is Filed: Winning Battles over the Statute of limitations, Removal, Preemption, Estoppel & Standing

Miriam “Dusty” M. Burke
Vinson & Elkins LLP (Austin, TX)

Nicholas J. Pappas
Weil, Gotshal & Manges LLP (New York, NY)

Steven L. Severson
Faegre & Benson LLP (Minneapolis, MN)

Statute of Limitations, Standing and Proper Parties

• When does a claim accrue in order to assess the statute of limitations?
• Best strategies and case law to rely on for getting older claims dismissed
• Standing after CYR v. Reliance Standard
  • The future of insurers as de facto plan administrators and defendants
• Class standing under Article III & ERISA

Estoppel

• How will Cigna v. Amara reform estoppel and equitable reformation?
• What types of misrepresentations are actionable?
• Miscommunication and non-disclosure trouble spot
• ERISA estoppel claims after Bloemker

Preemption & Removal Updates

• Current case law updates on express, implied and complete preemption issues
• Preemption of actions by medical providers and state pay-or-play laws
• State regulation of discretionary clauses
• What preemption issues are raised in regard to the PPACA?

2:15 Afternoon Refreshment Break

2:20 Benefits litigation: Addressing post-MetLife Requests for Evidence outside the Record in “Conflict” Situations, the Viability of the Arbitrary and Capricious Standard of Review, Exhaustion Requirements & Attorneys’ Fees After Hardt

Christina McNally
Senior Counsel
CIGNA Corporation (Philadelphia, PA)

René E. Thorne
Jackson Lewis LLP (New Orleans, LA)

Anthony F. Shelley
Miller & Chevalier Chartered (Washington, D.C.)

Discovery & Properly Responding to Requests for Documents after MetLife

• The evolution of permissible discovery
  • What kinds of discovery are courts allowing today?
  • How to reply to demands for statistical information
  • Who are plaintiffs deposing?
  • Preparing non-attorney company witnesses for depositions
• Preparing claims file and your client for increased discovery
• Responding effectively to burdensome conflict discovery
• Avoiding ERISA penalties in responding to document requests
• Understanding the plan administrator’s obligations under §104(b)
• Knowing the elements of a proper request
• §502(c) penalties for failure to comply

The Standard of Review, the Exhaustion Requirements and the Level of Deference post-Conkwright

• Judicial review of claims decisions after MetLife
• how is the new case law interpreting these decisions?
• What deference should a court give a plan administrator’s decision denying a claim for benefits?
• Establishing express discretionary authority and an arbitrary and capricious standard of review, thereby limiting discovery and evidence to the administrative record
  • A look into continuing evolution of the ban on discretionary language
• The arbitrary and capricious standard – is it still the benefit it once was?
• Remand or judgment: what is proper after Conkwright? Where are the courts coming down on this?
• How does the PPACA affect exhaustion?

Attorneys’ Fees After Hardt

• The continuing evolution of fee awards after Hardt
• Can the industry expect more fees like that awarded in Verizon?
• Will courts grant plaintiffs’ counsel’s fees when they achieve only interim success?

3:35 Conference Adjourns Registration for Benchmarking Session A

DAY TWO: Friday, October 21, 2011

7:15 Continental Breakfast

8:00 ERISA Moot Court: Judicial Perspectives on Hot Topics in ERISA

In this session, attorneys will square off against each other in front of a judicial panel to debate some of the hottest issues in ERISA litigation. Prior to this session, conference participants will be provided with a short fact pattern and briefs from the attorneys arguing the issues. After presenting their case to the distinguished panel of federal judges, each panel will have the opportunity to question the attorneys and then the panelists will deliberate the ‘case’ for the benefit of the audience. Don’t miss this exciting session where attendees will get to: watch top litigators argue over some of the hottest ERISA issues, listen in as federal judges decide the issues that you face everyday, and ask questions of the judges to find out what arguments turned a case for – or against - our litigators.

Panel 1 | 8:00-9:05 Motion Requesting Discovery Beyond the Administrative Record

Motion being heard by

Hon. Daniel E. Knowles, III
U.S. Dist. Ct., E.D. La.

Hon. Morton Denlow
U.S. Dist. Ct., N.D. Ill.

Fernando J. Gaitan, Jr.
U.S. Dist. Ct., W.D. Mo.

Hon. Timothy C. Batten, Sr.
U.S. Dist. Ct., N.D. Ga.

Motion being argued by

Elizabeth J. Bondurant
Smith Moore Leatherwood LLP (Atlanta, GA)

Michael H. Bernstein
Sedgwick LLP (New York, NY)

Moderator
Anthony F. Shelley
Miller & Chevalier Chartered (Washington, D.C.)

Motion being heard by

Hon. Matthew Kennelly
U.S. Dist. Ct., N.D. Ill.

Hon. William S. Duffey, Jr.
U.S. Dist. Ct., N.D. Ga.

Hon. Viktor Pohorelsky
U.S. Dist. Ct., E.D.N.Y.

Motion being argued by

Amanda S. Amert
Jenner & Block (Washington, D.C.)

Paul J. Ondrasik, Jr.
Steptoe & Johnson (Washington, D.C.)

Moderator
Lawrence Fine
SVP and Chief Technical Officer – Financial Lines
Chartis Claims, Inc. (New York, NY)

10:10 Morning Coffee Break

Motion being heard by

Hon. Robert Jonker
U.S. Dist. Ct., W.D. Mo.

Hon. Richard G. Stearns
U.S. Dist. Ct., D. Mass.

Hon. John Coughenour
U.S. Dist. Ct., W.D. Wash.

Hon. Robert B. Collings
U.S. Dist. Ct., D. Mass.

Motion being argued by

Gary S. Tell
O’Melveny & Myers LLP (Washington, D.C.)

James O. Fleckner
Goodwin Procter LLP (Boston, M.A.)

Moderator
H. Douglas Hinson
Alston & Bird LLP (Atlanta, GA)

11:20 A Deeper Dive Into Fiduciary liability Insurance Coverage: Understanding Your Coverage needs, the Details of Your Policy and other Insurance Products that Should Be In Place to guarantee Proper Coverage

Ann Longmore
Executive Vice President
Willis of New York, Inc. (New York, NY)

Hilda M. Batlle
Vice President, Financial Services Group
Aon Risk Solutions (New York, NY)

Mary Anne Mullin
Assistant Vice President, Strategic Claims
CNA Open Brokerage Claim (New York, NY)

Rhonda Prussack
Executive Vice President & Product Manager
Chartis Claims (New York, NY)

Christine A. Dart
Vice President, Global Fiduciary Liability Product Manager
Chubb & Son (Simsbury, CT)

Moderator
Kimberly M. Melvin
Wiley Rein LLP (Washington, D.C.)

• Top concerns for underwriters in placing and underwriting fiduciary liability insurance
• Understanding fiduciary acts & conduct exclusions
  • Negligent acts
  • Settlor functions
  • Wrongful acts
• Complying with the requirements of claims made policies
• When must a claim be reported?
• Where problems could arise with duty to defend agreements
• Exposure in outsourcing
  • Getting plan sponsors to understand exposure when administration and other functions are completely outsourced
  • What products does each party (plan sponsor, tpa, record keeper, actuary, etc) need in place to cover exposure and who should have what?
  • Use of professional services policies (D&O, etc) in conjunction with fiduciary liability policies
  • Proper use of indemnification agreements between parties to mitigate risk and where there may be exposure even with an indemnification in place
  • What exposure is a sponsor taking on if they sign an indemnification agreement and a service provider is negligent or breaches their fiduciary duty?
  • What can plan sponsors demand from service providers in terms of insurance policies?
• Understanding exposure in M&A situations
  • What factors should deal attorneys be assessing?
  • Where are the most common spots for risk?
  • Securing coverage for past events that may be exposed post-acquisition and what insurance products acquiring companies should put in place to mitigate future risk

12:30 Networking Luncheon for Speakers & Delegates

1:25 ESOPS: Dealing with the Unique ERISA Issues that Arise in Closely Held Corporations

Samuel A. Henson, J.D.
Senior ERISA Counsel
Lockton Retirement Services (Kansas City, MO)

Lawrence Fine
SVP and Chief Technical Officer – Financial Lines
Chartis Claims, Inc. (New York, NY)

Christopher J. Rillo
Schiff Hardin LLP (San Francisco, CA)

• Emerging theories of liability against fiduciaries of closely held corporations
• Assessing liability of fiduciaries for failure to divest stock when there is no public market
• Crafting favorable repurchase agreements
• Indemnification of company executives as fiduciaries
• Issues in proper valuation of company stock
• Installment buybacks

2:15 401(k) Fees: An In-Depth Analysis of the Current litigation trends and Continuing Dol Regulatory Scheme

Amy R. Covert
Proskauer Rose, LLP (Newark, NJ)

Brian T. Ortelere
Morgan, Lewis & Bockius LLP (Philadelphia, PA)

Jonathan L. Sulds
Greenberg Traurig, LLP (New York, NY)

The Current Overview & Hot Issues

• Plaintiffs’ evolving theories of liability and recent decisions
• A look at the uptick in prohibited transaction claims with respect to fees
• Status update on the Kraft case and a look at the importance of using competitive bidding to select
• Defending the procedural process record and the fiduciary’s decision in choosing service providers
• Defending the service provider in fee litigation cases
• Recent successes in 404(c) and Iqbal/Twombly defenses in fee cases
• Updates on issues surrounding
• Actively managed funds
• Mutual funds
• Revenue sharing arrangements

Spotlight on the DOL’s Disclosure Rules

• The DOL’s Proposed 408(b)(2) Regulation: Impact of the mandated disclosures on plan fiduciaries and service providers
• What disclosure is required?
• What will DOL enforcement initiatives look like?
• Establishing transparency in fees
• What constitutes a “reasonable” fee? Benchmarking your clients’ plan fees against industry standards

3:10 Afternoon Refreshment Break

3:15 An Update on Stock Drops, the §404(c) Safe Harbor Provision, new theories Surrounding Investment Decisions and Emerging Issues in Securities litigation

Kenneth P. Held
Vinson & Elkins LLP (Houston, TX)

Thomas L. Cubbage
Covington & Burling LLP (Washington, D.C.)

H. Douglas Hinson
Alston & Bird LLP (Atlanta, GA)

David Tetrick, Jr.
King & Spalding (Atlanta, GA)

Stock Drop & §404(c) Safe Harbor Defense Updates

• How the courts are currently interpreting the requirements of 404(c)
• Liability protection and 404(c) indemnification
• Status update on major cases
• Recent cases establishing fiduciary functions for which does §404(c) not provide a defense
• The status of the Second Circuit: A look at the status of the Citigroup cases, Mcgraw-Hill, Bear Stearns

Emerging issues in investment decisions

• Liability surrounding selection of mutual funds and group annuity products
  • What cases are out there and where are they headed?
  • Liability for failure to get rid of poorly performing funds
  • Liability when financial institutions have their own mutual funds in the plan: a look at the Wells Fargo and Suntrust cases
  • Understanding group annuities, the pricing and revenue models, and how they are giving rise to claims
  • How do collective investment trusts compare with mutual funds for liability purposes?
• Issues arising from IRA rollovers
  • Investment advisors as ERISA fiduciaries
  • Will fiduciaries be sued under ERISA or securities laws?
  • What will the standards be?
• A look at the Weyerhaeuser case and the implications of ‘over-diversification’
  • An overview of the merits of the case and where it is headed
  • What will the defense look like?
  • The debate over Article III standing
  • Other possible “risky” investment strategies

Stock Drop Cases & the Intersection with Securities Litigation

• The impact of Dodd-Frank on shareholder votes on executive compensation
• Will new theories of liability develop when compensation committees make decisions contrary to shareholder votes?
• Will compensation consultants have liability for aiding and abetting breaches of fiduciary duty

4:20 Avoiding the Pitfalls in Retiree Welfare Benefits litigation: Alternative Strategies for Funding Retiree Healthcare, Bargaining with the Retired Workforce, and Strategies once a Case is Filed

Steven J. Sacher
Jones Day (Washington, D.C.)

Charles S. Mishkind
Miller Canfield Paddock & Stone, P.L.C. (Grand Rapids, MI)

Eric P. Mathisen
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Chicago, IL)

Liability & Litigation Strategies

• An analysis of the issues in funding retiree medical
• How does health care reform affect costs going forward now? After 2014?
• Preventing union effort to get involved in retiree medical litigation
• Forum shopping:
• Strategies for preventing plaintiff forum shopping
• Taking proactive steps to be in a favorable district/circuit
• An overview of where multi-state employers want to litigate
• The intersection of ERISA and Taft-Hartley §301

VEBAs

• Update on new VEBAs
• The pros and cons of establishing a VEBAs
• When a company with large amounts of OPEB liability should consider a VEBA
• The procedural issues paramount in class action litigation and binding the class

5:10 A Focus on Defined Benefit Plan litigation: Dealing With Multiemployer Plans in the Red Zone, Assessing and Minimizing Withdrawal and Successor liability, and Defending technical Challenges to Single Employer Defined Benefit Plans

Keith R. McMurdy
Fox Rothschild LLP (New York, NY)

Carol Conner Cohen
Arent Fox LLP (Washington, D.C.)

Susan K. Hoffman
Littler Mendelson P.C. (Philadelphia, PA)

Multiemployer Plan Litigation & Withdrawal Liability

• What to do when a fund is in trouble- Making and recording requests for verifiable actuarial statements
• What constitutes good cause for delay in an administrator’s response to a request for liability calculations
• Balancing increased contribution requirements against an assessment of withdrawal liability
• Withdrawal and successor liability issues
• Defenses to withdrawal liability
• Controlled group liability
• Recovering from non-controlled group entities

Litigation Involving Single Employer Pension Plans

• Anti-cutback claims: determining what constitutes an “accrued benefit” and when cutbacks are permitted under §204(g)
• Disclosure claims arising under 204(h) and summary plan descriptions (Cigna Corp. v. Amara)
• Cash balance plan update
• Examining age discrimination claims regarding pension plans
• Litigation involving plant shutdown benefits (Shaver v. Siemens Corp.)
• Dissecting other theories of liability

6:00 Conference Concludes

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Location:
New York Marriott Downtown
New York, NY