erisa litigation: best practice tips from speakers

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Best Practice Tips

from Speakers

#ERISALitigation 1

Miriam (Dusty) M. Burke


Vinson & Elkins LLP

Dusty Burke is a partner in the Employee Benefits and Executive

Compensation group at Vinson & Elkins. She devotes a significant

portion of her practice to ERISA litigation, defending clients in class

actions involving stock drop claims, cash balance plan claims, breach

of fiduciary duty claims, claims for pension plan benefits, cutback

claims, and executive compensation litigation. Dusty also frequently

counsels clients on best practices for avoiding or mitigating exposure

to ERISA litigation. She is a frequent speaker at ERISA litigation

conferences and employee benefits and executive compensation

seminars and has authored several articles on various aspects of ERISA

litigation. Dusty has been professionally recognized in The Best

Lawyers in America in ERISA litigation, 2012, 2013, 2014; The Best

Lawyers in America in employee benefits and executive

compensation, 2002 to 2014; The Legal 500 U.S. in employee

benefits/executive compensation, 2011, 2012, 2013; and "Texas Super

Lawyer," Texas Monthly, 2002 to 2010.

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The best way for a fiduciary to winor even completely avoidan ERISA lawsuit is to make sure he has checked all the best practices

boxes before the lawsuit is filed.

You are a fiduciary of an ERISA 401(k) plan reading a complaint recently

filed against you alleging that you breached your fiduciary duties under

ERISA. What do you and the plan sponsor of your plan wish had been

done before the lawsuit was filed?

Pre-Litigation Best Practices Check List:

Provide fiduciary training for the plans administrative committee. Few

fiduciaries actually know before they get sued what duties ERISA

requires of plan fiduciaries. Two hours of fiduciary training goes a long


Be aware of the fiduciary exception to the attorney client privilege.

Communications relating to the administration of an ERISA plan are

generally not protected from discovery in a lawsuiteven if made to or

from inside/outside counsel. Keep protected communications (e.g.,

minutes relating to amendments to the plan) separate from

unprotected communications (e.g., minutes relating to plan


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Protect the Board of Directors, the Company, and the officers from

being named as deep-pocket defendants in a breach of fiduciary

duty action by structuring the administration of the plan to (i) give

the administrative and investment authority to a defined group of

individuals (e.g., an administrative committee, an investment

committee) and (ii) limit the individuals who are authorized to

appoint members of those fiduciary committees.

Dont use your corporate/securities documents as substitutes for

ERISA plan documents.

Dont take legal advice from your record keeper or third party


Draft plan documents to prevent plaintiffs from forum shopping by

including (i) a stated limitations period for bringing benefit claims,

(ii) a stated event that will trigger the accrual of that limitations

period, and (iii) a governing jurisdiction.

Regularly update the plan fiduciaries of recent developments in

the case law. An excellent way to determine how not to act is to

know what conduct the courts have recently determined constitutes

a breach of fiduciary duty.

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James P. Mc Elligott Jr.


McGuire Woods LLP

Mr. McElligott has a national ERISA litigation and arbitration practice,

is a Fellow of the College of Labor and Employment Attorneys, and is

listed in Best Lawyers in America (under ERISA, ERISA Litigation, Labor

Law, and Employment Law), AV-Preeminent-Rated, Labor &

Employment Law, Martindale-Hubbell, a Leading Lawyer for

Business, Labor & Employment: Employee Benefits & Compensation

in Chambers USA, 2008-2013, and "Virginia Super Lawyers,"

Employee Benefits/ERISA, Employment & Labor, 2007-2013.

Mr. McElligotts practice includes defense of class action claims of

ERISA fiduciary breach; multi-employer plan withdrawals and mass

withdrawals; ERISA stock-drop litigation; retiree medical claims;

severance claims; top hat litigation; ERISA 510; PBGC lien and ERISA

4062(e) claims; and HIPAA privacy and security litigation. He has

litigated in federal district and appellate courts, in Tax Court, in

bankruptcy courts, and has handled matters before and in litigation

with the PBGC, the NLRB, the EEOC, and the Department of Labor.

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Mr. McElligott is a member of the Employee Benefits Committee of

the US Chamber of Commerce, the Employee Benefits Committees of

the ABA Sections of Labor and Employment Law and Taxation, former

president of the Federal Bar Association, Richmond Chapter, and

former President of the Central Virginia Employee Benefits Council.

He received his law degree from Harvard Law School, cum laude,

served as Note Editor for the Harvard Journal on Legislation, and is a

Phi Beta Kappa graduate of the University of Illinois.

Best Practices for Dealing with Multiemployer Plans

Large, otherwise sophisticated companies often misunderstand

liabilities of multiemployer plans.

Investors, including private equity funds, need to know controlled

group rules to avoid liability.

Plans audit pension and welfare contributions and frequently claim

additional contributions beyond what employers anticipated.

The right to resist additional contribution claims may be limited and

subject to substantial penalties.

Avoid any participation by any controlled group member in a

multiemployer plan if possible. This is difficult in certain industries

and areas, such as construction/hotels in major metropolitan areas.

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If any controlled group member participates in multiemployer

plans, due diligence should be done on estimated withdrawal

liability potential for mass withdrawal, and contribution obligation

required by the collective bargaining agreement and plan


Understand how to repudiate NLRA 8(f) construction pre-hire


Study the collective bargaining agreements, trust agreements,

bylaws and rules, and on funding status and participation by

other employers, available on the plans Form 5500s, DOL

website, and other sources.

Monitor potential likelihood of mass withdrawal, understand mass

withdrawal rules, and withdraw if possible before mass

withdrawal becomes likely.

Unions are increasingly willing to agree to early withdrawal by


Lump sum and periodic payment withdrawal liability figures are

not actuarially equivalent. Employers generally must pay

withdrawal liability while they contest it.

Know and strictly follow the special rules and deadlines for

reviewing and arbitrating withdrawal liability.

Courts can determine whether an entity is an employer subject

to withdrawal liability.

Know how the plan can accelerate employers lump sum liability.

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Mark Casciari


Seyfarth Shaw LLP

Mark Casciari is a partner with Seyfarth Shaw LLP. He has represented

employers, plan sponsors, plans, fiduciaries and plan administrators

in ERISA class actions and in other employee benefits cases, in federal

courts throughout the United States, in state courts and before

arbitrators and mediators. Mark has served as amicus curiae counsel

of record in two United States Supreme Court ERISA cases. He was

counsel of record in these 2013 published ERISA decisions of the

Court of Appeals for the Seventh Circuit: Hakim v. Accenture United

States Pension Plan, 718 F.3d 675 (7th Cir. 2013) and Laskin v. Siegel,

728 F.3d 731 (7th Cir. 2013). Mark is a frequent author of articles on

employee benefits litigation topics, and is a frequent contributor to

Seyfarth's ERISA & Employee Benefits Blog, which can be found at Mark is a Fellow in

the American College of Employee Benefits Counsel, a Fellow in the

College of Labor and Employment Lawyers and a long-standing

Adjunct Professor of Trial Advocacy at Northwestern University

School of Law.


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