The Legal 500

The ‘fantastic’ team at Morgan Lewis continues to impress peers and clients alike with its breadth of expertise. Its ‘very client-oriented’ labor and employment law and employee benefits lawyers handle some of the most complex Employee Retirement Income Security Act (ERISA) litigation across the United States. ‘The overall level of service is excellent. I believe that it clearly has the most depth in the ERISA practice area of any US firm. It is obvious that the firm devotes significant resources to its ERISA practice group’. ‘The people in the group are both knowledgeable in the subject area of ERISA, but are also skilled litigators. Response time is excellent, and while no top-notch firms are cheap, it is good value’. The team is ‘knowledgeable and aggressive in its defense approach’. Highlight work included representing Tellabs in the second post-Enron ERISA stock-drop case to go to trial. In 2010, the firm continued to act as defense counsel in Kanawi v Bechtel Corp, one of a wave of 20 ERISA class actions that are pending against Fortune 500 companies. Other representations have included the defendants in Quan et al v Computer Sciences Corporation, et al, where the Ninth Circuit resolved inconsistent rulings in its prior decisions and affirmed a district court judgment in favor of CSC and its plan fiduciaries. In another recent case, this time involving COBRA premium calculations, the firm secured a favorable class settlement for the defendants in Owen v Methodist Hospitals of Dallas, Inc (d/b/a/ Methodist Health System), et al. ‘First rate lawyer’ Charles Jackson ,who has ‘serious trial experience in this area’, co-chairs the ERISA litigation group with Philadelphia-based Brian Ortelere. ‘Their strength is the breadth and depth of knowledge, together with their litigation skills’. Another high-flyer from this ‘excellent’ firm is Gregory Braden, who is described by clients as their ‘first choice’. Depth of ability is key to the firm’s success; individuals that deserve high praise include Sari Alamuddin and Deborah Davidson in Chicago, and ‘very knowledgeable’ Jeremy Blumenfeld in Philadelphia. In 2010 Ward Kallstrom left the firm’s San Francisco office to join Seyfarth Shaw.

O’Melveny & Myers LLP’s ERISA litigation lawyers achieved a number of important victories for its clients in 2010. The ‘excellent’ team provides its clients with keen insight into what events trigger litigation, how courts interpret fiduciary obligations, and what best practices to employ to minimize liability risk. Put simply, one client attests that ‘it is the best ERISA firm I have ever worked with’. A recent example of work the firm has undertaken is its representation of Edison International and Southern California Edison. The suit was part of a number of class actions brought by the same St Louis-based plaintiffs’ firm against companies with large 401(k) retirement plans. These cases have all generally alleged that 401(k) plans breached their fiduciary duties and committed prohibited transactions by charging excessive fees to plan participants, including through the use of retail mutual funds as plan investment options. The court had previously dismissed the vast majority of plaintiffs’ claims via summary judgment. What was left – claims that the inclusion of six mutual funds in the Edison 401(k) Plan constituted breaches of fiduciary duty and that the inclusion of a money market fund was also a breach of fiduciary duty – proceeded to a bench trial in October 2009, followed by further briefing in 2010. In the July order, the court found that the defendants did not breach their fiduciary duty of loyalty by selecting any of the six mutual funds in question. Other representative clients include Bank of America Corporation, Ford Motor Company, Fidelity Investments, Humana and Prudential. Practice chair Robert Eccles, one of the doyens of ERISA litigation, is ‘a perfect gentleman, fantastically brilliant and instills the confidence in clients that they will prevail’. He is ‘steady, prudent and a pre-eminent ERISA litigator’. Also recommended is his colleague Gary Tell, who before joining the firm, spent several years with the Department of Labor’s Office of the Solicitor, where he assisted the Employee Benefits Security Administration with investigations and handled ERISA litigation across the United States. Brian Boyle also has considerable experience in ERISA litigation.

‘Responsible, responsive and easy to deal with’, Proskauer Rose LLP provides an ‘excellent, knowledgeable service with depth and a wealth of experience in this area’. The 20-strong, dedicated ERISA litigation team has ‘very broad and deep expertise on the legal issues and developments in the area as well as historical and current knowledge of pension plan issues and practices. This really allows it to connect the dots quickly and gives strategic benefits over less experienced plaintiffs’ class counsel’. The firm has seen its fair share of Fortune 500 companies requiring defense in bet-the-company employee benefits lawsuits. Recent cases that the firm took on where the sums at stake were on or around $1bn include Allen v Honeywell and Raetsch v Lucent. The firm has also recently represented clients in two significant stock-drop cases – Gearren v The McGraw-Hill Companies, Inc and Allen v Wachovia Corporation – which arose from the recent economic turmoil, and successfully obtained dismissal of all claims in two different Circuits. In another case, the firm represented Foot Locker Inc and the Foot Locker Inc Retirement Plan in a putative class action lawsuit relating to the conversion of the Foot Locker Inc Retirement Plan to a cash balance formula; it also assisted Citigroup in the defense of a putative cash balance class action lawsuit alleging a series of cutting-edge claims that challenged the validity and operation of the Citigroup Cash Balance Plan, including claims of age discrimination and violation of ERISA’s minimum accrual and notice rules. Howard Shapiro is ‘the kind of guy you want to listen to – he is creative, aggressive, and above all knowledgeable’. ‘His dynamism fills the room, and he always knows the answer’. Meanwhile, Myron Rumeld is ‘a superb practitioner. Very smart, very practical. A real problem solver’. ‘He does not allow emotions to interfere with sound decision-making and is a good buffer between client defendant and plaintiff. He tends to want to explore settlement options if feasible and reasonable and is persistent in digging to get to essential facts’. Amy Covert is also recommended.

Steptoe & Johnson LLP is an ‘excellent’ firm, with ‘great expertise in ERISA litigation’. Work highlights in recent months included major victories for clients at the motion to dismiss stage in the employer stock drop arena, a victory for a leading trade association on an important ERISA pre-emption question, and a continued leading role in defense of excessive fees litigation. Specifically, the firm is representing American Express Company, its board of directors, and other individual defendants in a putative class action alleging that defendants breached their ERISA fiduciary duties by imprudently allowing the company’s 401(k) plan to acquire and hold company stock, failing to provide certain information to plan participants, and related claims. The firm also serves as co-lead defense counsel for the defendant Bear Stearns Companies Inc in the ERISA stock drop portion of the In Re Bear Stearns Companies, Inc. Securities, Derivative and ERISA Litigation. The firm also represents the Pharmaceutical Care Management Association in a case that seeks to enjoin the enforcement of a District of Columbia law that regulates certain practices of pharmacy benefit managers on the ground that the law is pre-empted by ERISA and violated certain provisions of the US Constitution. The group also recently obtained the dismissal of ERISA fiduciary breach claims alleged against the former CEO and chairman of the board of a pharmaceutical company in an employer stock drop case. Other clients include BP and the firm is ERISA fiduciary panel counsel for both Chartis and Chubb. Paul Ondrasik leads the ERISA litigation practice. He is ‘a keen intellectual who has breadth and depth in his scope of knowledge’. ‘He knows every angle of ERISA law’. Eric Serron and Morgan Hodgson both have extensive experience in this area of law and are also recommended.

Covington & Burling LLP provides ‘intellectual horsepower, and incredible subject matter expertise’. The firm achieved an important victory for Xerox in the Supreme Court on the role of plan administrators, secured in the Seventh Circuit the first-ever appellate decision reforming mistaken language in an ERISA plan and secured important victories in the Second and Third Circuits on ERISA § 502(a)(2) claims and class certification under ERISA. The firm also has an impressive track record in the appellate courts. The victory for Verizon defeated a claim for $2bn in additional pension benefits that included a $1.67bn drafting error. Although there was no reported case during the ERISA’s 36-year history where a court had reformed such an error in a pension plan, Jeffrey Huvelle’s team persuaded the district court to correct the error, which it did last November, in a 100-page opinion. The Seventh Circuit affirmed the decision unanimously. The firm also successfully defended UTC in a 401(k) excessive fees case, achieving one of the first victories in such a case based on a full evidentiary record, and secured a ruling by the Second Circuit rejecting such a claim. The victory for Schering-Plough in the Third Circuit in December 2009 vacated a class certification ruling, and paved the way to a favorable settlement that is currently awaiting final court approval. Individuals that are singled out for praise by clients include Thomas Cubbage, Robert Long, Eric Bosset, Robert Wick and Richard Shea. Collectively, the team has ‘a great deal of expertise and knowledge in this area’.

Gibson Dunn fields ‘very smart lawyers who are responsive and produce good written work’. The ERISA group is small, but the quality of the work undertaken is irrefutably high. Of note, recently the Supreme Court granted certiorari in CIGNA Corporation v Amara. The Court will determine the showing that an ERISA plan participant must make to recover benefits based on an alleged inconsistency between the Summary Plan Description and the plan itself. The firm prepared the successful petition for a writ of certiorari on behalf of CIGNA Corporation and the CIGNA Pension Plan. In another case the team successfully brought a petition for permission to appeal pursuant to Federal Rule of Civil Procedure 23(f) in the United States Court of Appeals for the Seventh Circuit in Spano v Boeing. This petition challenges the ability of plaintiffs in ERISA cases involving 401(k) plans to obtain certification of a class under FRCP Rule 23(b)(1)(B). The group is currently representing Boeing in two other ERISA matters, Harkness v Boeing, in the United States District Court for Kansas, and UAW v Boeing, on remand to an arbitrator from the Seventh Circuit Court of Appeals in a decision issued this year. Other examples of representative work include assisting First Reserve Corporation, Hamilton Lane and New York Life on ERISA plan asset issues raised by their respective investment funds. William Kilberg is ‘especially strong on strategic and tactical thinking’ while of counsel Paul Blankenstein is ‘good on research and motion and brief writing’. Michael Collins also has impressive experience in advising on ERISA cases as part of his employee benefits and executive compensation practice.

McDermott Will & Emery LLP’s Nancy Ross is ‘very engaging and experienced’. ‘She is exceptionally skilled in handling complex benefits litigation, is very practical and has in-depth knowledge of the law’. Ross and her team have extensive experience representing employers, boards of directors, plan fiduciaries and trustees in pension and welfare benefit plan disputes and frequently represent directors who are named as defendants in ERISA litigation and counsel employers seeking to reduce their retiree health benefits exposure. Wilber Boies also represents benefit plan sponsors and fiduciaries in ERISA class action litigation. Several health benefits class actions he has won resulted in court-approved savings to employers valued at more than $100m, and he has defeated several class actions based on company stock price declines in benefit plans. In Orange County, Chris Scheithauer is also recommended. The firm recently secured an important victory for Chrysler when the US District Court for the Eastern District of Michigan preliminarily approved a class action settlement that resolves Chrysler’s retiree medical obligations to its union retirees and their families and won a major victory for Northrop Grumman in a high-stakes ERISA class action suit with potential exposure of more than $1bn. In another complex case, the firm recovered class action defense fees for State Street Bank. In 2010, the district judge rejected all of the plaintiffs’ arguments and ordered that State Street recover its full $2.5m of lawyers’ fees and related expenses. Other representative clients include Eastmen Kodak, Kretek International and AXA Equitable.

Sidley Austin LLP’s ERISA litigation group, led by Anne Rea, has more than 40 lawyers who devote a substantial amount of time to ERISA litigation, with a special focus on class action and other multi-party cases. The group represents employers, pension plans, board members, trustees, administrators, broker-dealers and other clients in trial and appellate courts throughout the country, including the Supreme Court. Of particular note, the firm won significant victories in an ERISA case for Exelon Corporation in the Northern District of Illinois and the Seventh Circuit and prevailed before the Ninth Circuit in a high-profile challenge to a cash balance plan adopted by the Southern California Gas Company, a subsidiary of Sempra Energy. The firm has also handled three lawsuits that challenged the design of various pension plans sponsored by Bank of America or its predecessors, and the team is representing AT&T and its Management Pension Plan in a class action raising multiple challenges under ERISA and the Age Discrimination in Employment Act to a cash balance plan conversion, including claims for age discrimination, backloading, § 204(h) notice and summary plan description disclosures, and disparate impact based on the Supreme Court’s decision in Smith v City of Jackson. Other key clients include PepsiCo, Duke Energy Corporation, Owens Corning and Tribune Company. From a talented group of partners that specialize in this area, Priscilla Ryan is singled out by her competitors for being ‘a superstar’ who has ‘great technical ability’.

At Alston & Bird LLP, the ‘terrific’ Douglas Hinson is a ‘fine lawyer’ and the leader of the firm’s ERISA litigation group. He and his team’s representative experience includes serving as lead defense counsel in more than a dozen 401(k)/employer stock class actions, including matters in the Districts of Oregon, New Jersey, Maryland, Eastern Kentucky, Eastern North Carolina, and Middle Florida – winning five on motions to dismiss, defeating class certification in two and resolving all others before motions to dismiss were decided, three on terms that did not require monetary compensation to the settlement class. The firm also recently represented a major airline in multi-district ERISA class actions filed in Boston, Los Angeles, New York, Cincinnati, Albuquerque and East St Louis pertaining to the actuarial value of lump sums and alleged cutbacks in pension benefits for active and retired pilots. Patrick DiCarlo is also recommended, particularly for his expertise on the ERISA and securities issues that arise in the retirement plan context.

Groom Law Group garners high praise from its clients. The firm ‘knows its stuff, more importantly the advice it provides is practical and tailored to our unique circumstances’. ‘Advice and more importantly, results are exceptional. ‘ Michael Prame, who ‘is without question one of the best litigation strategists’, leads a team which includes the talents of Gary Ford, Thomas Gigot, Lonie Hassel and Lars Golumbic. ‘ Ted Scallet has a rare skill among attorneys; he understands the objective and is always thinking ahead three to five steps whenever working through an issue or situation’. Recently, the firm obtained dismissal of a putative nationwide class action lawsuit against Paychex challenging its receipt of fees from mutual fund companies in which Paychex’s 401(k) plan clients invest. The firm is currently defending a putative class action lawsuit against New York State United Teachers (NYSUT) and the NYSUT Member Benefits Trust challenging the receipt of fees in connection with an endorsement of a particular group annuity product.

Jones Day’s practice head Evan Miller and Steven Sacher are the firm’s ERISA litigation big hitters. The group has been busy, and recent representative highlights include representing Paris-based energy company TOTAL, SA and its US-sponsored pension plan in putative class action under ERISA. The firm is also representing Xerox Corporation and several officers in a putative class action alleging breaches of fiduciary duty and asserting a claim for benefits in connection with changes in the benefit structure in a retiree health care plan. The firm is also currently acting for retail company Macy’s Inc, its board of directors, and certain senior executives in a putative class action under ERISA. In this case, the plaintiffs claim that the defendants violated fiduciary duties under ERISA in connection with notice to retirees of pension amounts.

Paul, Weiss, Rifkind, Wharton & Garrison LLP is a ‘terrific’ firm, which is ‘cost effective, and fields excellent talented lawyers’. Lewis Clayton ‘is one of the best’. ‘He is not just analytically smart, but also has sound judgment’, and is building a national reputation for the work he is undertaking in New York. Recently, he and his team achieved a victory for Citigroup, CGMI and certain Citigroup directors in a putative class action brought by current and former employees of Smith Barney alleging that certain provisions of their employment agreements with Smith Barney violated California’s Unfair Competition Law. The firm also advised Conexant, a semiconductor manufacturer, in an ERISA suit and securities fraud class action challenging disclosures related to the integration of an acquisition. In addition, the firm assisted AIG in an ERISA stock drop litigation that was settled and ING in an ERISA class action which is pending in federal court in New York.

Seyfarth Shaw is ‘at the top in terms of technical expertise and it doesn’t back down or give up’. The firm boosted its ERISA litigation capability at the end of 2010 with the hire of Ward Kallstrom from Morgan Lewis. The firm has recently handled a range of ERISA class actions, including stock drop litigation, cash balance and other pension plan design cases, 401(k) plan fees litigation, and retiree medical benefits litigation. Brian Cousin and Ian Morrison’s group has also developed an expertise in challenging withdrawal liability assessments under Title IV of ERISA. ‘The overall level of service is outstanding’. ‘It has high in-depth knowledge of the specific technical area, its advice has been balanced, its written motions are phenomenal and it is very thorough in preparing witnesses’. Examples of the caliber of client that the firm assists include Accenture, Alliant Energy Corporation, BP Corporation North America, Caterpillar, Chartis Insurance, Kraft Foods Global, Motorola and Solar Turbines. Ronald Kramer and Neil Capobianco are also highly recommended.