ERISA Litigation

Registration and Continental Breakfast

Co-Chairs’ Welcome

In-House Perspectives on Navigating Claims and Class Actions in Today’s Evolving ERISA Landscape

A panel of esteemed in-house counsel will provide high-level insights and unique perspectives on ERISA litigation including: limiting fiduciary, plan sponsor and service provider liability; minimizing risk of litigation; managing litigation once it arises; best practices for managing the claims review process; preparing for and handling DOL investigations, and beyond.

Morning Coffee Break

Anticipated Regulatory Changes and Realities Under the New Administration: Update on the New DOL Rules on Fiduciaries and Claims Procedures and Key Agency Activity Impacting ERISA Claims and Litigation

• Deciphering the new DOL Fiduciary Rule and its impact on ERISA litigation
  • Update on the rule’s implementation and its implications
  • Anticipated new litigation and theories of liability
• Examining the new DOL Claims Procedures for Plans Providing Disability Benefits and its impact on claims administration and appeals
• Evaluating the possible revival of the DOL opinion letter program
• Assessing the latest DOL ERISA litigation positions and priorities under the new leadership of Secretary of Labor, Alexander Acosta
  • EBSA’s latest enforcement initiatives and activity
• Survey of other relevant agency activity impacting ERISA claims, including IRS, EEOC, and PBGC
  • Revisiting the IRS Determination Letter Program: the coming scale-back and its implications
  • PBGC updates:
    • Withdrawal liability update – approved amendment to withdrawal liability rules
    • Information gathering with respect to de-risking activity

Examining the Latest Wave of University Fee / 403(b) Exempt Entity Plan Litigation

• Analyzing the theories and defenses in the latest university fee / 403(b) exempt entity plan litigation
• Survey of the initial round of judicial decisions in these matters
• Assessing what the courts considered in recent rulings on motions to dismiss (including those by Emory University and Duke University)
• Exploring court determinations regarding practices such as:
  • The use of multiple record keepers
  • The inclusion of a large number of funds in the same asset class
  • The offer of many actively managed funds having the same management style
  • Offering higher-cost retail or retirement-class mutual fund shares instead of institutional-class shares of the same mutual funds
  • The payment of administration and recordkeeping fees through asset-based revenue sharing

Exploring Recent Trends in ESOP Litigation, Valuation and Disclosure Claims, and Heightened Pleading Standards Post-Dudenhoeffer

• An overview of the latest ESOP claims; analyzing and interpreting recent notable decisions
• Avoiding mistakes in valuation determinations to prevent litigation
  • The DOL’s identification of key valuation errors
  • What are the courts looking at in determining valuation issues in these cases?
• Addressing the latest disclosure issues in these cases
• What level of due diligence is the trustee to engage in to satisfy the fiduciary duty under ERISA?
• What level of deference is given?
• Satisfying the prudence standard under Section 404
• Whether and when courts will allow ESOP-owned companies to indemnify ESOP fiduciaries
• Examining the continuing aftermath of Dudenhoeffer on employer stock cases; lower court decisions and interpretations
• To what extent has the Dudenhoeffer decision been applied to closely held companies vs. publicly traded companies?

Networking Lunch for Speakers and Delegates Sponsored by:

Advocate Health Care Network v. Stapleton: Analysis and Implications of the Supreme Court’s Church Plan Decision

• Analyzing the Supreme Court’s church plan decision in Advocate Health Care Network v. Stapleton
• Assessing the implications that this decision has for all church affiliated organizations going forward
• What questions does this decision leave open with respect to future litigation and possible new regulation?
• Identifying the circumstances under which large non-profit hospital systems may meet the requirements for the church plan exemption

The Continued Rise in Fiduciary Investment Litigation: 401(k) / Excessive Fee Litigation, Proprietary Fund and Stable Value Fund Cases, and Other Investment Vehicle Challenges

• Addressing the continued expansion of claims over plan investments in defined contribution plans, including:
  • 401(k) investment selection cases
  • 401k fee monitoring challenges
  • Fee reduction
• An overview of the latest excessive fee cases coming out of the lower courts, against both plan service providers and sponsors
  • Analyzing new theories and trends in these cases
  • Assessing winning defenses and litigation strategies
• Examining the new wave of proprietary fund litigation
  • Understanding the key theories and challenges in these cases
  • An overview of key court rulings
  • Benchmarking strategies for ERISA professionals in response to recent trends and developments in these cases
• Survey of recent fiduciary challenges involving investment vehicles:
  • Exploring claims involving Stable Value Funds, Collective Investment Trusts (CITs), Target Date Funds, Guaranteed Interest Contracts (GICs)
  • Challenges involving failure to diversify
  • Demystifying the evolving prudence standard
  • Assessing competing theories of measuring damages

Afternoon Refreshment Break

The Evolving State of Remedies and Equitable Relief Under ERISA 502(a)(3): New Remedies Post-Montanile

• Analyzing recent decisions involving claims of equitable relief in ERISA cases
• Examining remedial schemes under 502(a)(3) post-Amara
• Claims for surcharges as a remedy – what are the courts saying?
• Addressing the ongoing implications of the Supreme Court decision in Montanile
  • Traceability and the comingling of assets
  • Determining a course of action for plan fiduciaries in view of a third-party recovery?
• Exploring the latest developments in equitable estoppel claims
• How to strategically address 502(a)(3) relief claims – the pros and cons of addressing them as early as possible via motion to dismiss, versus waiting until the summary judgement phase

A Matter of Insurance: Assessing Current and Future Coverage Needs Relative to ERISA Litigation and Settlement Trends

• Exploring the scope of fiduciary liability insurance
• Examining what distinguishes FLI from other types of relevant insurance
• Deciphering what conduct and what remedies FLI covers
• Identifying common coverage issues and how to address them
• Strategic litigation and settlement considerations when fiduciary insurance is involved
• Assessing your needs and ensuring proper coverage: key exclusions and extensions; and issues that arise when service providers (TPAs, record keepers, etc.) are involved
• Considerations when purchasing FLI
• Addressing indemnification and liability insurance coverage challenges
• Strategies and best practices for ERISA fiduciary liability insurance negotiation, placement and underwriting

Conference Adjourns to Day Two

Continental Breakfast

Co-Chairs’ Welcome and Recap of Day One

Views From the Bench on Litigating ERISA Claims and Class Actions

A roundtable of renowned federal jurists 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.

Morning Coffee Break

Healthcare Related ERISA Litigation: Addressing the Uptick in Medical Provider Claims, and Litigation Arising from the Intersection of ERISA and ACA

• Examining the recent uptick in claims by medical providers against health plans /employers; the extent to which these claims may be brought under ERISA
• Determining standing to sue
  • Assessing the use of assignment of rights agreements to give medical providers standing
• Examining the latest disputes concerning charges between the medical providers and carriers
• Claims of fraud and discrimination
• State law and preemption concerns
• Analyzing the latest claims of individual beneficiaries or medical service providers suing through ERISA for violations of the ACA
• Exploring theories in class actions brought by plan participants related to ACA coverage
• Understanding how the ACA’s ultimate fate will impact ERISA claims

ERISA Class Action Avoidance Update: Instituting Class Action Waivers and Mandatory Arbitration of Benefit Disputes

• Key considerations for ERISA plan sponsors in the face of the debate over the enforceability of arbitration agreements with class action waivers
• Exploring trends in recent Supreme Court rulings on this issue
• Examining notable lower court rulings regarding the enforceability of arbitration agreements in ERISA documents
• Weighing the advantages and disadvantages of arbitration in ERISA
• Assessing procedural matters that plan sponsors should consider before mandating individual arbitration of ERISA claims:
  • Arbitration cost sharing determinations
  • Arbitrator selection and scope of arbitrator authority
  • Structuring discovery

What’s New in the World of Individual Benefit Claims: The Battle Over Discretionary Clauses, Venue Selection Concerns, Statute of Limitations Challenges and Preemption

• Identifying the latest state efforts to outlaw discretionary clauses and the impact on standard of review in individual benefit claims
• Update on recent litigation over venue selection clauses in plans and determining enforceability
• Tackling statute of limitations challenges in these claims
• Factoring in the broad confines of preemption in these claims in the aftermath of Gobeille
• Developing winning strategies

Conference Ends – Lunch for Workshop Participants Begins