Firm Information
Employee Benefits Practice
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The firm's employee benefits practice has four components: plan design and administration counseling, representation before federal agencies, fiduciary counseling, and litigation on behalf of plans, plan participants, and unions. The firm employs attorneys who specialize in each of these areas of practice. The firm represents a mix of large- and medium-sized private and public funds, and international and local unions and employee associations with respect to employees they represent, as well as the organizations' own employees and officers.
Plan Design and Administration
The firm has extensive experience in counseling employee benefit plans in design and plan administration matters. The firm serves as regular plan counsel to a variety of private sector single-employer and multiemployer pension and welfare plans, as well as a number of state and local public pension and welfare plans. The firm assists these clients in ensuring that their plans, in both design and operation, comply with the various technical requirements of the Internal Revenue Code, ERISA, and other federal and state laws. For these clients, the firm's attorneys assure that the fiduciaries satisfy due diligence requirements under the prudence standard. They also review service provider and administrative contracts to protect the plans' interests, and, where necessary, negotiate contract terms; draft, review, and, negotiate and enforce collective bargaining and plan participation agreements on behalf of its plan clients; render legal opinions, and also are available to consult with plan administrative staff, actuaries and auditors. As discussed above, the firm also represents a number of international unions for which it provides employee benefit counseling and advice in the context of organizing, collective bargaining, litigation, internal staff plans, and group insurance benefits for their members. It also assists unions in monitoring compliance with legal requirements applicable to employee benefit plans that are maintained by employers.
The firm's expertise in federal tax issues affecting state and local government plans recently was recognized when it was retained by the National Education Association to draft a report for publication entitled: Federal Tax Rules Relating to Benefit Plans for Public Education Employees -- A Resource Guide.
Representation Before Federal Agencies
The firm regularly represents its employee benefit plan clients before the Internal Revenue Service, the Department of Labor, the Pension Benefit Guaranty Corporation and state inspector general offices. The firm maintains contacts with policymaking and enforcement officials in these agencies and represents clients both formally and informally in a wide range of matters including discussions of policy, investigations of specific factual circumstances and responses to administrative subpoenas and formal agency actions. The firm regularly advises and represents clients with respect to the scope and consequences of the reporting and disclosure and prohibited transaction rules found in ERISA and the Internal Revenue Code. The firm also represents employee plans seeking exemption from, or modification of, various federal tax and labor law requirements. The firm addresses unrelated business income tax issues and other matters concerning tax-exempt organizations. And the firm is in regular contact with staff at federal regulatory agencies and Congress in order to keep fully informed as to current and prospective developments in the pension and welfare benefit areas.
The firm also advocates benefits policy issues on behalf of its clients before federal agencies and Congress. For example, the firm recently submitted comments to the Internal Revenue Service on behalf of the American Association of Retired Persons regarding the cash balance plan controversy. And on behalf of the National Education Association and the American Federation of Teachers, the firm submitted comments to the Internal Revenue Service regarding the exclusion of severance plans from tax treatment under section 457 of the Internal Revenue Code, and to the Equal Employment Opportunity Commission regarding the coordination of retiree medical plans and Medicare.
Fiduciary Counseling
The firm has vast experience counseling fiduciaries, which is a major focus of the firm's employee benefits practice.
The firm represents a number of funds that are highly sophisticated investors, holding investments in state-of-the-art financial instruments created on Wall Street, in addition to direct investments in various types of real estate, venture capital funds, and special nature funds. The firm's attorneys attend investment committee meetings and provide legal advice with respect to all investment decisions, including all manner of corporate governance issues, such as proxy voting policies and procedures, and securities and state corporate law issues.
In addition, the firm advises fiduciaries with respect to the evaluation of benefit claims by helping them establish prudent procedures and assisting in investigations. The firm also advises fiduciaries with respect to the delegation of discretionary authority and the allocation of responsibilities among fiduciaries, investment managers, administrators, insurers and service providers.
The firm's expertise in public sector plan fiduciary issues was recognized when it was asked by the National Education Association to provide advice regarding the development of the Uniform Management of Public Employee Retirement Systems Act which was recently adopted by the National Conference of Commissioners on Uniform State Laws. The firm was particularly well-suited for this assignment as it previously had drafted similar model legislation on behalf of the Public Employee Department, AFL-CIO for use by state and political subdivisions regulating the design and governance of defined benefit pension plans.
Litigation
The firm maintains an active employee benefits litigation practice representing unions, employee benefit plans, and participants and beneficiaries of employee benefit plans at all levels of the federal court system and in arbitrations. Included among the significant employee benefit cases before the U.S. Supreme Court in which the firm has written briefs are: Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), the seminal case involving the appropriate standard of review under ERISA of benefit determinations made by plan fiduciaries, General Dynamics Land Sys., Inc. v. Cline, 124 S. Ct. 1236 (2004), DeBuono v. NYSA-ILA Medical & Clinical Servs. Fund, 520 U.S. 806 (1997), California v. Dillingham Constr., Inc., 519 U.S. 316 (1997), New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995), Concrete Pipe & Products v. Construction Laborers Pension Trust, 508 U.S. 602 (1993), Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633 (1990), Massachusetts v. Morash, 490 U.S. 107 (1989), Schneider Moving & Storage v. Robbins, 466 U.S. 364 (1984), Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983), United Mine Workers of America Health & Retirement Funds v. Robinson, 455 U.S. 562 (1982), and National Labor Relations Board v. Amax Coal, 453 U.S. 322 (1981). And the firm has handled literally scores of employee benefit cases before the federal appellate courts, trial courts, bankruptcy courts and arbitrators on issues involving collections, provider disputes, benefit claims and alleged fiduciary breaches.
A few examples may help to demonstrate the breadth of the firm's experience with regard to important issues in the employee benefits area. The firm scored two wins in enforcing a multi-employer fund's uniform contribution rules. Bakery & Confectionery Union and Indus. Int'l Pension Fund v. Ralph's Grocery Co., 118 F.3d 1018 (4th Cir. 1997); Bakery & Confectionery Union and Indus. Int'l Health Benefits and Pension Funds v. New Bakery Co., 133 F.3d 955 (6th Cir. 1998). The firm represented plan participants in a successful suit to enforce a provision of a pension plan requiring the plan's sponsor to transfer sufficient assets to a spun-off plan in order to fully fund the vested benefits under that plan at the time of the spinoff. Kinek v. Paramount Communications Corp., 22 F.3d 503 (2d Cir. 1994). The firm recently successfully defended a health benefits fund against an attack by a hospital on the Fund's claims notice rules. Baptist Memorial Hospital v. Marsaw, (W.D. Tenn. 1998). And attorneys from the firm also successfully litigated an unprecedented case on behalf of the trustees of the United Mine Workers Health and Retirement Funds to enforce obligations of employers to make continuing contributions to the Funds, even though their employees were no longer covered by collective bargaining agreements requiring these contributions. United Mine Workers of America 1974 Pension v. Pittston, 984 F.2d 469 (D.C. Cir. 1993).
The firm's work in Shy v. Navistar (S.D. Ohio) as special counsel to a class of unions--led by the United Auto Workers--and 63,000 retirees, also demonstrates the depth of the firm's employee benefits practice. In Shy, the class sought to enforce its rights to company-paid health benefits. A recently approved settlement to that suit provided the Navistar retirees partially pre-funded, irreducible, lifetime health benefits that are less costly than their current benefits. The reduced cost of these benefits for Navistar likely will permit the company to become financially viable. As part of the settlement, the retirees became beneficial owners of 50 percent of Navistar's outstanding common stock. The firm served as lead litigation counsel for the class in the United States District Court. The firm also represented the class before the U.S. Department of Labor for purposes of obtaining an exemption with respect to the acquisition of the Navistar stock by a proposed health benefits trust. And the firm represented the class before the Internal Revenue Service and provided advice with respect to the tax aspects of the settlement. Finally, bringing all of these perspectives to bear, the firm was heavily involved in negotiating and structuring the settlement.
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