Day 1 - Thursday, November 21, 2019

7:30
Registration and Continental Breakfast
8:00
Co-Chairs’ Opening Remarks
8:15
DOL Activity on Proposed Rules, Audits, Investigations, and Enforcement Actions
9:15

STATE OF THE UNION

The Newest Market Predictors, Anticipated Trends, and The Next Phase of Regulatory Changes
10:00
Morning Refreshment Break
10:15
THE DEBATE: Choosing the Right Actuarial Assumptions to Fit Your Case
11:15

INTERACTIVE SESSION

In-House Counsel Deliberation on Selecting and Working with Outside Counsel: The Newest Approaches to Litigation Plans, Defense Strategies, and Selecting the Right Outside Counsel
12:15
Networking Lunch sponsored by O’Melveny
1:30
Supreme Court Practitioners Panel: The Next Wave of ERISA Cases Seeking Cert., New Trends, Procedural Outcomes, and the Impact on Advising Clients
2:30
Changes to Valuation of Stock Cases: What It Now Takes for Successful Management of Stocks, ESOP Challenges, and Enforcement Activity
3:30
Afternoon Break
3:45
Wins and Losses in 401(k) Fee Cases and Trial/ Settlement Outcomes of 403(b) University Cases: What’s the Score and What’s Next?
4:45

TOWN HALL

What’s Keeping Insurance Executives Up at Night? New Claims and More Risk Factors to Anticipate in 2020
5:30
Conference Adjourns to Day 2

Day 2 - Friday, November 22, 2019

7:30
Continental Breakfast
8:30
Co-Chairs’ Welcome Remarks and Recap of Day 1
8:35

FIRESIDE CHAT

ERISA Litigation Trials, Arbitration Clauses, and The Biggest Pet Peeves in the Courtroom
9:15
The Surprising Aftermath of Stock-Drop Litigation Cases Post-Jander v. IBM: The Top Ten Most Successful Approaches to Preventing and Defeating Claims
10:00
Morning Refreshment Break
10:15
Best Practices for Developing and Training Fiduciaries
11:15
The New Outlook on Health and Welfare Litigation: The Lesser Known Takeaways from the Last 12 Months—and Where Things Stand Now
12:15
Networking Lunch sponsored by Miller & Chevalier
1:30

ETHICS

Hypothetical Scenarios and Practical Guidance for ERISA Practitioners
2:30
Conference Ends

Post-Conference Workshop

ERISA Boot Camp: A Crash Course on the Nuts and Bolts of ERISA Benefit Plans, Claims, Settlements, Cases, and More Need-to-Know Takeaways

Nov 22, 2019 2:30pm – 4:30pm

Speakers

Marina Llata
Assistant Vice President-Claims Manager, D&O/FI-Fiduciary
Axis Insurance

Geoffrey W. Heineman
Partner
Ropers Majeski Kohn & Bentley PC

Day 1 - Thursday, November 21, 2019

7:30
Registration and Continental Breakfast
8:00
Co-Chairs’ Opening Remarks

James F. Reda
Managing Director and Practice Leader, Executive Compensation
Gallagher

Chris K. Meyer
Partner
Sidley Austin LLP

8:15
DOL Activity on Proposed Rules, Audits, Investigations, and Enforcement Actions

Joseph J. Torres
Partner
Jenner & Block LLP

Nancy G. Ross
Partner
Mayer Brown LLP

Brian S. Cousin
Partner and Co-Chair ERISA Litigation Practice
McDermott Will & Emery LLP

9:15

STATE OF THE UNION

The Newest Market Predictors, Anticipated Trends, and The Next Phase of Regulatory Changes

Andrew L. Oringer
Partner
Dechert LLP

In this session, speakers will impart expert perspectives on the landscape moving forward. Since we last met, we have seen several university 403(b) trials conclude or settle, as well as steady litigation related to 401(k) plans. Stock drop litigation – once seen as dead in the water – has surged in the last few months causing practitioners to re-evaluate their litigation plans and defenses to these claims. In addition, we will have a detailed overview of legislative efforts to pass the proposed SECURE Act, which will have profound impact on the operation for 401(k) plans.

10:00
Morning Refreshment Break
10:15
THE DEBATE: Choosing the Right Actuarial Assumptions to Fit Your Case

Jeremy P. Blumenfeld
Partner
Morgan Lewis Bockius LLP

Robert Newman
Partner
Covington & Burling LLP

In this interactive session, our speakers will re-enact a debate between a plaintiff and defendant on the appropriate actuarial assumptions to fit a hypothetical ERISA case. Following the debate, attendees will engage in a tabletop exercise discussing the merits and disadvantages of using different types of actuarial assumptions.

  • Examining the current overview of litigation trends associated with actuarial assumptions for annuities
  • Responding to and formulating a defense that actuarial assumptions from the 80s and 90s are old and outdated
  • Analyzing arguments that actuarial assumptions in question are approved by the IRS
  • Interpreting US Banc Corp, American Airlines, and PepsiCo cases
  • Practical impact of not having a mandated actuarial assumptions in ERISA and what it means for ERISA case outcomes
TABLETOP EXERCISE New for 2019: In this tabletop exercise, our speakers will pose questions for discussion as a tabletop exercise. We will debate the pros and cons of using an actuarial assumptions from the 1980s or using alternative actuarial methods. At the end, participants will share findings.

11:15

INTERACTIVE SESSION

In-House Counsel Deliberation on Selecting and Working with Outside Counsel: The Newest Approaches to Litigation Plans, Defense Strategies, and Selecting the Right Outside Counsel

John Forgach
Assistant General Counsel, Employment & Benefits
W.R. Grace & Co.

Logan Gould
Assistant Vice President & Senior Counsel
The Guardian Life Insurance Company of America

Cindy Ruback
Assistant General Counsel, Executive Compensation
The Home Depot

Moderator:

Caitlin P. Strauss

Caitlin P. Strauss
Partner
Saul Ewing Arnstein & Lehr LLP

A unique opportunity to hear from in-house decision-makers on key issues, including:

  • Managing litigation managing plans to successfully defend ERISA litigation cases
  • Selecting and retaining outside counsel
  • Finding qualified experts to support your litigation strategy

12:15
Networking Lunch sponsored by O’Melveny
1:30
Supreme Court Practitioners Panel: The Next Wave of ERISA Cases Seeking Cert., New Trends, Procedural Outcomes, and the Impact on Advising Clients

Dana Berkowitz
Partner
Stris & Maher

Jaime A. Santos
Partner
Goodwin Procter LLP

Meaghan VerGow
Partner
O’Melveny & Myers LLP

Karen L. Handorf
Partner
Cohen Milstein Sellers & Toll PLLC

More ERISA cases are seeking cert. before the U.S. Supreme Court today more than ever before, which presents unique challenges and raises questions for stakeholders. In this session, our speakers who have briefed and argued before the U.S. Supreme Court will address the dynamic parts of each of these cases before the Court and examine how these cases will shape the course of ERISA litigation going forward. Points of discussion include:

  • Examining cases based on fiduciary breaches over the administration of 401(k) plans
  • Interpreting the Intel case on statute of limitation challenges
  • Review of the Putnam Investment case on burden of proof challenges to show harm
  • Understanding the impact of the Thole case on standing
  • Analyzing the Great-West case on what constitutes a fiduciary under ERISA
  • Overview of cases denied cert. including White v. Chevron – 9th circuit court case on the investment and administrative fees

2:30
Changes to Valuation of Stock Cases: What It Now Takes for Successful Management of Stocks, ESOP Challenges, and Enforcement Activity

Greg Ash
Partner
Spencer Fane LLP

Richard N. Bien
Partner and Chair of ERISA Litigation and Life, Health and Disability Litigation
Lathrop Gage LLP

José M. Jara, Esq.
Partner
Archer & Greiner P.C.

  • Asserting claims based on: formation, mid-life, and termination claims
  • Interpreting the Brundel v. Wilmington and the GreatBanc cases related to ESOP challenges
  • Examining instances where the DOL will sue the trust and shareholder based on management of stocks
  • Review of cases based on forum selection clauses
  • Assessing DOL enforcement activity in the ESOP space

3:30
Afternoon Break
3:45
Wins and Losses in 401(k) Fee Cases and Trial/ Settlement Outcomes of 403(b) University Cases: What’s the Score and What’s Next?

D. Lee Heavner, Ph.D.
Managing Principal
Analysis Group

Rhonda Prussack
SVP and Head of Fiduciary and Employment Practices Liability
Berkshire Hathaway Specialty Insurance

Catalina Vergara
Partner
O’Melveny & Myers LLP

Since we last met, the fee cases related to 401(k) claims have continued to rise at a steady rate. Plaintiffs have not slowed down when filing claims related to recordkeeping and excessive fees. In the 403(b) university cases, some have concluded with a trial or a settlement. In this session, our speakers will break down the effective defense strategies and outcomes moving forward. Points of discussion will include: 401(k)

  • Examining claims based on investment fees, excessive fees, and fiduciary breaches
  • Determining the outcome for cases based on proprietary funds including an analysis of Brotherson v. Putnam Invs., LLC
403(b)
  • Identifying pleading standards specific to 403(b) plans
  • Analyzing the trial outcomes for 403(b) litigation cases
  • Overview of defense wins, including cases that have been dismissed
  • Settlements involving (403)(b) cases and how this affects the course of litigation in the future

4:45

TOWN HALL

What’s Keeping Insurance Executives Up at Night? New Claims and More Risk Factors to Anticipate in 2020

M. Matthew Mannion
Vice President – Fiduciary Liability Claims Financial Lines Claims
AIG

James F. Reda
Managing Director and Practice Leader, Executive Compensation
Gallagher

In this session, attendees will be able to ask questions directly to insurance executives who handle claims on a daily basis. They will advise on new claims, trends on the horizon for 2020 and how we can create and devise management plans to successfully mount a defense.

5:30
Conference Adjourns to Day 2

Day 2 - Friday, November 22, 2019

7:30
Continental Breakfast
8:30
Co-Chairs’ Welcome Remarks and Recap of Day 1
8:35

FIRESIDE CHAT

ERISA Litigation Trials, Arbitration Clauses, and The Biggest Pet Peeves in the Courtroom

Hon. Michael Baylson
U.S. District Court
Eastern District of Pennsylvania

Interviewer

Amy M. Gordon
Partner
Winston & Strawn LLP

A renowned federal jurist will provide key insights on what works and doesn’t work in their courtrooms, as well as perspectives on class certification, motions to dismiss, novel trial and case management strategies, reconciling different pleading standards, and more.

9:15
The Surprising Aftermath of Stock-Drop Litigation Cases Post-Jander v. IBM: The Top Ten Most Successful Approaches to Preventing and Defeating Claims

Chris K. Meyer
Partner
Sidley Austin LLP

J. Christian Nemeth
Partner
McDermott Will & Emery LLP

  • Overview of the current precedent in the Dudenhoffer Supreme Court case
  • Interpreting the Jander v. IBM case on stock-drop litigation
    • Reviewing the details surrounding 401(k) fee cases and performance of cases regarding mutual funds
    • Examining how 2nd Circuit decision in Jander creating an exception to the pleading standard in Dudenhoffer
  • Devising defense strategies to overcome plaintiffs’ allegations related to pleading standard (public information vs. non-public information)
  • Responding to challenges for revealing information to the public: 1) plaintiffs must bolster their pleading standard and 2) insufficient to claim breach of fiduciary duty
  • Analysis of other cases involving stock-drop claims including Johnson and GE

10:00
Morning Refreshment Break
10:15
Best Practices for Developing and Training Fiduciaries

Kimberly A. Jones
Partner
Drinker Biddle & Reath LLP

Kathleen M. Morris
Associate General Counsel, Employment and Benefits
Willis Towers Watson

Wendy Katherine Von Wald, Esq.
Fiduciary Product Manager, Bond and Specialty Insurance
Travelers

  • Assessing the current state of the market for fiduciary liability
  • Examing coverage assessments
  • Understanding the scope of what underwriters look for in fiduciary liability
  • What are the do’s and don’ts of maintaining best practices for fiduciaries
  • Developing guidelines for fiduciary training
  • Implementing ways to monitor company stock fund
    • Maintaining watch lists for monitoring performance of underperforming of funds
  • Assessing fees including investment and recordkeeping fees
    • Understanding the ways in which the fiduciary has power of authority of the plan
    • Providing investment advice as a fiduciary
  • Examining ways to prevent claims of breach of fiduciary duty

11:15
The New Outlook on Health and Welfare Litigation: The Lesser Known Takeaways from the Last 12 Months—and Where Things Stand Now

Mark A. Gustafson
Principal
Analysis Group

Anthony F. Shelley
Member
Miller & Chevalier Chartered

Marcia Wagner
Founder & Managing Partner
Wagner Law Group

Garrett W. Wotkyns
Partner
Schneider Wallace Cottrell Konecky Wotkyns LLP

Anti-Assignment Clauses

  • Assessing the enforceability of anti-assignment clauses and its effect on claims by health care providers against plans and insurers
    • Examining how courts are trending with anti-assignment clause cases
      Mental Health Claims
      • Impact of mental health claims in the ERISA context
      • Interpreting the Wit vs. United Behavioral Health case
        • Breach of fiduciary duty claims
        • Improper denial of claims
          • Updates on the Mental Health Parity and Addiction Equity Act
          • Applicability of ERISA’s fiduciary standards in the health plan context
          Provider Litigation
          • Examining the recent growth of providers asserting claims are not preempted by ERISA
          • Resolving the differences with courts’ opinions on pre-emption of claims

12:15
Networking Lunch sponsored by Miller & Chevalier
1:30

ETHICS

Hypothetical Scenarios and Practical Guidance for ERISA Practitioners

Irene Bassel Frick
Office Managing Partner
Akerman LLP

Elizabeth G. Doolin
Member
Chittenden, Murday & Novotny LLC

Caroline Turner English
Partner
Arent Fox

In this session, our speakers will work through a series of hypothetical scenarios and how to resolve them. Ethics topics to be covered include representation of multiple clients, ERISA fiduciary exception to attorney client privilege, and other ethical dilemmas.

  • Assessing possible improprieties arising from the representation of multiple clients
    • When is multiple representation permitted, and when is it deemed materially limited by a lawyer’s responsibilities to another client?
    • Effects of changes in the scope and type of representation
  • Addressing ethical dilemmas arising out of the ERISA fiduciary exception to attorney-client privilege
    • Determining whether the fiduciary exception applies to privileged communications between fiduciaries of ERISA-governed plans and their or the plan’s legal counsel
    • Who is the “client” entitled to privilege? — What communications are privileged?
    • Assessing the content, timing and reason for the communication

2:30
Conference Ends

ERISA Boot Camp: A Crash Course on the Nuts and Bolts of ERISA Benefit Plans, Claims, Settlements, Cases, and More Need-to-Know Takeaways

Nov 22, 2019 2:30pm – 4:30pm

Marina Llata
Assistant Vice President-Claims Manager, D&O/FI-Fiduciary
Axis Insurance

Geoffrey W. Heineman
Partner
Ropers Majeski Kohn & Bentley PC

What is it about?

Whether you are a new practitioner or more senior-level seeking a refresher, learn the core elements of ERISA benefit plans and litigation from start to finish. As benefit plans vary in scope, gain insights on the “ins and outs” of the ERISA litigation timeline from the time the case is filed to final adjudication. Key factors such as procedural motions, discovery, standing, statute of limitations challenges, settlement, and trial outcomes will be discussed.

Topics of discussion include:

  • What are the key substantive requirements of ERISA and parallel IRS Code?
  • Assessing different types of employee benefit plans – defined benefit plans, defined contribution, and health & welfare plans
  • Key federal agencies involved in ERISA matters, their roles and jurisdictions
  • Identifying the most significant landmark ERISA litigation cases
  • Statute of limitations for ERISA cases
  • Statute of limitations for ERISA cases
  • Key factors to consider for standing challenges
  • The most common types of claims in ERISA
  • Procedural requirements for ERISA litigation cases
    • Core elements of drafting procedural motions
  • Outlining different remedies for ERISA litigation outcomes