Devising an Effective and Comprehensive Litigation Management Plan for Practitioners in the ERISA Arena

Nov 14, 2018 3:00pm - 5:00pm

Speakers

Nicole Y. Blohm
Partner
Meserve, Mumper & Hughes LLP (Los Angeles, CA)

Wendy Katherine Von Wald, Esq.
Fiduciary Product Manager Bond and Specialty Insurance
Travelers (Greenwood Village, CO)

Day 1 - Thursday, November 15, 2018

7:15
Registration and Continental Breakfast
8:00
Co-Chairs’ Welcoming Remarks
8:15
A Day in the Life of In-House Counsel in 2018: The Ever Expanding Wheelhouse of Today’s In-House Role
9:30
Fireside Chat with Insurance Executives on the Changing Landscape of ERISA Claims
10:15
Morning Coffee Break
10:30
DOL Regulations Affecting ERISA Litigation and Insights on the Future of ERISA in the Era of Trump
11:15
The Surge of 403(b) University Plan Litigation and Keeping Abreast of the Latest Wave of 401(k) Cases
12:15
Networking Lunch for Speakers and Attendees
1:15
Asserting Claims and Crafting Defenses Based on Valuation of Stock in ESOP (Employee Stock Ownership Plan) Litigation
2:15
Unraveling the Challenges Relative to Executive and CEO Compensation from Defined Benefits and the Resulting Fallout in Top-Hat Litigation
2:45
Afternoon Networking Break
3:00
Examining the Many Facets of Health and Welfare Plan Litigation Relevant to ERISA
4:00
Enforceability of Arbitration Clauses for Employee Agreements in the Wake of US Supreme Court Case Epiq Systems
4:45
Addressing Article III Standing Challenges in the ERISA Context
5:45
Conference Adjourns

Day 2 - Friday, November 16, 2018

7:30
Continental Breakfast
8:30
Co-Chairs’ Welcoming Remarks and Recap of Day 1
8:45
The Judges Speak on ERISA Claims & Litigation
9:45
The Evolving Landscape of Multiemployer Plans
10:45
Morning Break
11:00
Searching for Missing Plan Participants and Defining the Appropriate Duty of Care Sufficient to Satisfy DOL Standards
12:00
Networking Lunch for Speakers and Attendees
1:00
Strategies and Best Practices for ERISA Fiduciary Liability Insurance Negotiation, Placement, and Underwriting
1:45
Afternoon Break
2:00
Update on New Remedies and Equitable Relief Under ERISA 502(a)(3)
2:45

EARN CLE ETHICS CREDITS

Resolving Ethical Challenges for ERISA Attorneys
3:45
Conference Ends

Day 1 - Thursday, November 15, 2018

7:15
Registration and Continental Breakfast
8:00
Co-Chairs’ Welcoming Remarks

Jeremy P. Blumenfeld
Partner
Morgan, Lewis & Bockius LLP

Amy M. Gordon
Partner
Winston & Strawn, LLP

8:15
A Day in the Life of In-House Counsel in 2018: The Ever Expanding Wheelhouse of Today’s In-House Role

Bradley Betlach
Vice President & Senior Counsel Employee Benefits
Voya Financial (Minneapolis, MN)

Vicki D. Blanton
Assistant Vice President – Senior Legal Counsel, Tax & Benefits
AT&T (Dallas, TX)

Tonia Bottoms
Managing Director & Sr. Managing Counsel
Pershing, a BNY Mellon Company (Jersey City, NJ)

Robert A. Farr
Attorney
Consumers Energy (Jackson, MI)

Allison R. Klausner
Vice President, Counsel, Benefits
CBS Corporation (New York, NY)

Kara Lincoln
Legal Counsel
Fidelity Investments (Raleigh, NC)

Bradley Jay Schlichting
Senior Company Counsel
Wells Fargo Legal Department (Minneapolis, MN)

Join a conversation amongst in-house counsel on stage and in the audience to gain first-hand insights into the daily challenges they face, including:

 

  • Examining the role of today’s in-house executive
  • What are some of the expectations of today’s in-house counsel?
  • »» Budgets
  • »» Staffing
  • »» Reporting demands

 

Don’t miss this invaluable opportunity to learn what outside counsel can do to help their in-house counsel maintain this delicate balance

9:30
Fireside Chat with Insurance Executives on the Changing Landscape of ERISA Claims

Michael T. Grimes Esq.
US Business Law Group
Cigna Corporation (Philadelphia, PA)

Kathleen M. Morris
Associate General Counsel, Employment and Benefits
Willis Towers Watson (Philadelphia, PA)

Rhonda Prussack
SVP and Head of Fiduciary and Employment Practices Liability
Berkshire Hathaway Specialty Insurance (New York, NY)

David Stevens
Senior Associate General Counsel Director, Privacy and Records Management
Blue Cross and Blue Shield of Kansas City (Kansas City, MO)

Wendy Katherine Von Wald, Esq.
Fiduciary Product Manager Bond and Specialty Insurance
Travelers (Greenwood Village, CO)

Moderator:

Nancy G. Ross
Partner
Mayer Brown LLP

In today’s highly volatile ERISA landscape, the size and scope of ERISA claims evolve and change. These matters reach a complexity requiring skillful navigation and efficient litigation management. In this session, insurance
executives tackle the industry’s most pressing and critical concerns affecting ERISA claims including limiting fiduciary, plan sponsor and service provider liability, and formulating best practices for claims review.

10:15
Morning Coffee Break
10:30
DOL Regulations Affecting ERISA Litigation and Insights on the Future of ERISA in the Era of Trump

José M. Jara
Partner and ERISA Practice Group Leader
CKR Law, LLP (New York, NY)

Catalina J. Vergara
Partner
O’Melveny & Myers LLP (Los Angeles, CA)

  • Updates on DOL activity and priorities going forward in 2019 under Secretary of Labor, Alexander Acosta
  • Examining the impact of the proposed DOL fiduciary rule including definition of “investment fiduciary advice” and objections from industry stakeholders
    • Determining whether the DOL tried to pass a regulation which exceeded its authority
    • Review of Chambers of Commerce v. DOL on DOL authority relative to the fiduciary rule
  • Exploring the DOL rule on ERISA claim procedure under disability plans
  • Understanding the implications of the Association Health Plans rule
    • Overcoming onerous compliance challenges that may change the standard of review for plan administrators
    • Anticipating litigation stemming from this new rule
  • Allowing participants to file a lawsuit without utilizing all administrative remedies under the DOL deemed exhaustive rule

11:15
The Surge of 403(b) University Plan Litigation and Keeping Abreast of the Latest Wave of 401(k) Cases

Jeremy P. Blumenfeld
Partner
Morgan, Lewis & Bockius LLP

Robert M. Carmen
Senior Complex Claims Director | Pension Trust – Fiduciary Financial Lines Claims | AIG General Insurance
AIG (New York, NY)

Alison V. Douglass
Partner
Goodwin Procter LLP

D. Lee Heavner, Ph.D.
Managing Principal
Analysis Group (Los Angeles, CA)

Steven L. Severson
Partner
Faegre Banker Daniels LLP (Minneapolis, MN)

401(k) Litigation

  • Assessing the claims plaintiffs allege in 401(k)litigation:
    • Less expensive funds available but not offered
    • Excessive fees
    • Fiduciary breaches
  • Updates on propietary fund -litigation including key theories and court rulings
  • Litigation roundup on fiduciary challenges involving investment vehicles
  • Interpreting Brotherston v. Putnam Invs., LLC on high-fee proprietary investment funds
  • Analyzing the Gannett Co., Inc. 401(k) Savings Plan v. Gannett Co. Inc. case on breach of fiduciary duty, loyalty, prudence, and diversification

403(b) Litigation

 

  • Examining the recent surge in 403(b) litigation cases involving university plans with claims alleging:
    • Excessive fund options
    • Passively managed funds
  • Countering the argument that there is no duty to offer the cheapest funds and that ERISA only requires the university undertake the process to construct an investment line-up
  • Interpreting Sacerdote et. al v. New York University on allegations plan managers breached ERISA duties of prudence:
    • High record-keeping fees
    • Failure to issue competitive bids for record keepers
    • Failure to monitor revenue sharing paid to record keepers

12:15
Networking Lunch for Speakers and Attendees
1:15
Asserting Claims and Crafting Defenses Based on Valuation of Stock in ESOP (Employee Stock Ownership Plan) Litigation

Gregory Brown
Partner
Holland & Knight LLP (Chicago, IL)

Karen L. Handorf
Partner
Cohen Milstein Sellers & Toll PLLC (Washington, DC)

Scott J. Stitt
Partner
Tucker Ellis LLP (Columbus, OH)

  • Assessing claims based on:
    • Formation: claims based on overpayment of stocks
    • Mid-life: failure to disclose material event that would have affected purchase of stock
    • Termination: claims made on selling price of stocks
  • Examining the situations where DOL can sue a trust and shareholder based on allegations of mis-management by the plan sponsor
  • Interpreting Fifth Third Bancorp v. Dudenhoeffer on prudent investingin ESOP
    • Examining the role of ESOP fiduciaries and the decision to invest plan assets in company stock
    • Defining the “presumption of prudence” for ESOP fiduciaries
  • Overcoming allegations the valuation was deficient because it didn’t consider comparables and marketability discounts not properly evaluated
  • Analyzing Pioneer Centers on determining the burden of proof to show loss from a fiduciary breach
  • Assessing the circumstances ESOP-owned companies can indemnify ESOP fiduciaries

2:15
Unraveling the Challenges Relative to Executive and CEO Compensation from Defined Benefits and the Resulting Fallout in Top-Hat Litigation

Teresa Renaker
Founding Partner
Renaker Hasselman Scott LLP (San Francisco, CA)

James P. Baker
Partner
Baker & McKenzie LLP (San Francisco, CA)

  • Assessing the impact of defined benefit plans designed specifically for executives and CEO’s in the ERISA context
  • Defining the parameters of the “select group” element of top-hat plan exclusion
  • Analyzing the Girardot v. Chemours Co. case on applicability of ERISA to severance and other arrangements
  • Review of Feuer v. Redstone on claims for corporate waste involving executive benefit packages
  • Interpreting Sikora v. UPMC on relevance of executives’ bargaining power

2:45
Afternoon Networking Break
3:00
Examining the Many Facets of Health and Welfare Plan Litigation Relevant to ERISA

Amy M. Gordon
Partner
Winston & Strawn, LLP

Mark Gustafson
Vice President
Analysis Group (Los Angeles, CA)

Anthony F. Shelley
Member
Miller & Chevalier Chartered (Washington, DC)

Caroline Turner English
Partner
Arent Fox LLP (Washington, DC)

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
    • Review of Advanced Orthopedics, a Third Circuit Court case on right to confer a power of attorney versus assignment clauses

 

Mental Health Claims

 

  • Impact of mental health claims in the ERISA context
  • Updates on the Mental Health Parity and Addiction Equity Act
  • Applicability of ERISA’s fiduciary standards in the health plan context
  • Overview of alternative treatment plans (wilderness therapy, equine therapy, ABA therapy) and determining whether these are covered

 

Overpayment

 

  • Examining litigation between insurers and health care providers on recoupment of overpayment
  • Addressing questions of fraudulent activity of health care providers on servicers rendered to patients
  • Assessing the rise of claims of overpayment for drug and alcohol programs

 

Prescription Drug Cases

  • Analyzing Second Circuit Court’s opinion Express Scripts/Anthem on breach of fiduciary duty and establishing drug prices

4:00
Enforceability of Arbitration Clauses for Employee Agreements in the Wake of US Supreme Court Case Epiq Systems

Dan Feinberg
Partner
Feinberg, Jackson, Worthman & Wasow LLP (Berkeley, CA)

Chris K. Meyer
Partner
Sidley Austin LLP (Chicago, IL)

Garrett Wotkyns
Partner
Schneider Wallace Cottrell Konecky Wotkyns LLP (Scottsdale, AZ)

  • Determining whether arbitration agreements for employee agreements and class action waivers are valid in the ERISA context
  • Interpreting the US Supreme Court opinion in Epiq Systems on whether employers can legally compel employees to enter arbitration agreements
    • Assessing the Court’s holding that employers can require employees to bring claims in arbitration through individual basis without violating NLRA right to engage in concerted activity
  • Analyzing the Murphy Oil case on whether employment agreements requiring arbitration and class action waivers are enforceable under the FAA (Federal Arbitration Act)
    • Easing the tension between ERISA statute at odds with FAA related to the controversy surrounding the enforceability of arbitration agreements

4:45
Addressing Article III Standing Challenges in the ERISA Context

Stephen P. Lucke
Partner
Dorsey & Whitney LLP (Minneapolis, MN)

John Houston Pope
Member
Epstein Becker & Greene, P.C. (New York, NY)

Meaghan VerGow
Partner
O’Melveny & Myers LLP (Washington, DC)

  • Examining the procedural aspects of Article III standing relative to ERISA
  • Review of Thole v. US Banks — Eighth Circuit Court case seeking cert in the Supreme Court on allegations that plan wasn’t diversified and the plan lost value based on stock market
  • Examining the argument that US Bank put enough money back in plan in such that it became overfunded
    • Defining the concept of “prudential standing” under ERISA
  • Interpreting Fletcher v. Convergex — Second Circuit Court case on standing and fiduciary duty

5:45
Conference Adjourns

Day 2 - Friday, November 16, 2018

7:30
Continental Breakfast
8:30
Co-Chairs’ Welcoming Remarks and Recap of Day 1
8:45
The Judges Speak on ERISA Claims & Litigation

Hon. Robert B. Collings

U.S. Dist. Ct., Dist. of Massachusetts

Hon. Roslyn O. Silver

U.S. Dist. Ct., Dist. of Arizona

Hon. F.A. Gossett, III

U.S. Dist. Ct., Dist. of Nebraska

Hon. Alan J. Baverman

U.S. Dist. Ct., N.D. of Georgia

Hon. Ann D. Montgomery

U.S. Dist. Ct., Dist. of Minnesota

Hon. Robert Lehrburger

U.S. Dist. Ct., S.D. of New York

Moderator:

Irene A. Bassel Frick
Office Managing Partner
Akerman LLP (Tampa, FL)

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.

9:45
The Evolving Landscape of Multiemployer Plans

Miguel Eaton
Partner, Employee Benefits & Exec. Compensation
Jones Day (Washington, DC)

John Holland Ginsberg
Attorney
Pension Benefit Guaranty Corporation (Washington, DC)

Patrick W. Spangler
Shareholder
VedderPrice (Chicago, IL)

  • Understanding the nuances specific to multiemployer plans in the ERISA context
    • Determining whether Congress will bail out multiemployer plans and PBGC (Pension Benefit Guaranty Corporation) which is predicted to be defunct by 2025 according to industry predictions
    • Reviewing the decline of collective bargaining power and its impact on multiemployer plans
  • Examining the CMN Industry case on the right of retirees to collect health benefits from former employer
  • Interpreting the 2 pieces of DOL regulation creating “safe harbors” for state-sponsored retirement plans for employees who do not have plans with their employers
    • Determining the impact of mandating employer participation in retirement plans
    • Examining the GOP resolutions passed by Congress to repeal “safe harbor” provisions under the DOL rule

10:45
Morning Break
11:00
Searching for Missing Plan Participants and Defining the Appropriate Duty of Care Sufficient to Satisfy DOL Standards

Damarr M. Butler
Attorney Office of the General Counsel
Pension Benefit Guaranty Corporation (Washington, DC)

Robert Newman
Partner
Covington & Burling LLP (Washington, DC)

  • Examining the recent surge of investigations and examinations by the DOL on missing plan participants
  • Analyzing the Government Accounting Report relative to missing participant challenges
  • Defining the duty of care a company needs to adhere to in order to avoid DOL scrutiny in finding missing plan participants
  • Understanding the role of the recordkeeper in updating contact information for employees who have left the company
  • Interpreting the IRS code which requires companies to release funds when the retirement plan reaches its maturity date

12:00
Networking Lunch for Speakers and Attendees
1:00
Strategies and Best Practices for ERISA Fiduciary Liability Insurance Negotiation, Placement, and Underwriting

Marina A. Llata, Esq.
Senior Claims Specialist
AXIS Insurance

Diane R. McNally
Senior Vice President and Principal
Segal Select Insurance (New York, NY)

  • Understanding the scope and coverage with fiduciary liability in the ERISA context
  • Litigation and settlement nuances with fiduciary liability
  • Ensuring proper coverage: key exclusions and extensions; and concerns that arise when service providers (TPAs, record keepers, etc.) are involved
  • Addressing indemnification and liability insurance coverage challenges

1:45
Afternoon Break
2:00
Update on New Remedies and Equitable Relief Under ERISA 502(a)(3)

Dana Berkowitz
Partner
Stris & Maher LLP (New York, NY)

Rick Bien
Partner
Lathrop Gage LLP (Kansas City, MO)

Michael N. Khalil
Member; Vice Chair, Employment Benefits Department
Miller & Chevalier Chartered (Washington, DC)

  • Exploring how jurisdictions are interpreting concerns such as traceability, comingling of assets, and third-party recovery post-Montanile
  • Assessing the avenues for equitable relief: reformation of the ERISA plan, surcharge, disgorgement of profits
  • Exploring the latest developments in equitable estoppel claims
  • How to strategically address 502(a)(3) relief claims — pros and cons of addressing these at early vs. later in the litigation timeline

2:45

EARN CLE ETHICS CREDITS

Resolving Ethical Challenges for ERISA Attorneys

Greg Ash
Partner
Spencer Fane LLP (Overland Park, KS)

Sharon Goldzweig
Associate Counsel
Consolidated Edison Company of New York (New York, NY)

  •  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

3:45
Conference Ends

Devising an Effective and Comprehensive Litigation Management Plan for Practitioners in the ERISA Arena

Nov 14, 2018 3:00pm - 5:00pm

$600

Speakers

Nicole Y. Blohm
Partner
Meserve, Mumper & Hughes LLP (Los Angeles, CA)

Wendy Katherine Von Wald, Esq.
Fiduciary Product Manager Bond and Specialty Insurance
Travelers (Greenwood Village, CO)

What is it about?

In the ERISA litigation universe, the time, money, and scope of litigation can take a big toll on both sides of the coin. Plaintiffs and defendants have to agree on certain aspects including venue, clauses, and other aspects to further the litigation in a timely manner. In this interactive workshop, speakers will guide you through the “ins and outs” of designing an effective and comprehensive litigation management plan. You will come away with the expertise to advise your company or client the financial investment they will recoup by planning ahead and avoiding obstacles that can lengthen the litigation timeline. Avoid wasting millions on litigation costs and be well-prepared by planning in advance of the courtroom battle.

Points of discussion include:

  • Designing a better management plan for litigation and specifically for ERISA:
    • Venue selection clauses
    • Defining contractual limitation periods
    • Arbitration clauses
  • Using examples from “redacted” clauses proven to be successful in ERISA litigation
  • Providing a checklist of the “do’s and don’ts” of the litigation management plan
    • Clarifying what worked and did not work in litigation management plans — lessons learned and strategies and advice going forward
    • Creating a hypothetical litigation management plan for different types of ERISA litigation: excessive fees, breach of fiduciary duty, class action litigation, standing, and ESOP
  • Assessing how different jurisdictions are handling litigation management plans