ERISA and Employee Benefits Litigation

Verizon pension class action

Defeated an effort by a class of retirees to block Verizon’s purchase of an annuity contract to settle $7.5 billion in pension liabilities.

Xerox plan administrator Supreme Court victory

Secured victory for Xerox in the Supreme Court on the deference owed plan administrators. Coming into the case after an adverse decision in the Second Circuit, and despite vigorous opposition from the Solicitor General, the Department of Labor, and the Internal Revenue Service, we persuaded the Supreme Court that the lower courts erred in refusing to give deference to the plan administrator's reasonable interpretation of the plan made in the course of litigation after his pre-litigation interpretation was held to be mistaken.

Verizon $1.7 billion pension plan error

Obtained a court order for Verizon reforming a $1.7 billion drafting error in a pension plan formula. This was the first court order correcting a scrivener’s error in an ERISA plan.

DuPont plan administrator Supreme Court victory

Secured a unanimous Supreme Court decision holding that DuPont’s plan administrator “did its statutory ERISA duty” when it paid deceased worker’s retirement benefits to his ex-wife, whom he had named as beneficiary in plan documents, even though his ex-wife gave up any interest in the benefits in their divorce decree.

Supreme Court Victory for Harris Trust

Won a Supreme Court victory for our client Harris Trust and secured ruling that ERISA permitted a fiduciary to sue a non-fiduciary party in interest that had participated in a prohibited transaction. Harris Trust and Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238 (2000).

Victory in “Stock Drop” lawsuit

Persuaded Third Circuit to vacate a district court's certification of a class of participants in a "stock drop" lawsuit against our client Schering Plough that alleged breach of fiduciary duty for imprudent retention of a company stock fund in a 401(k) plan. In re Schering Plough Corp. ERISA Litig., 589 F.3d 588 (3d Cir. 2009).

U.S. Department of Labor and Internal Revenue Service Investigations

Resolved contentious investigations by the US Department of Labor and Internal Revenue Service, in which the government took positions that exposed our clients to many millions, and in some cases over $1 billion, of potential liability. In several of these cases, we replaced counsel that was unable to reach agreement with the government, when litigation appeared to be imminent.

Summary judgment success for UTC

Secured Second Circuit affirmance of a summary judgment ruling in favor of our client United Technologies in a 401(k) plan expense class action lawsuit, for which plaintiffs had calculated alleged damages of $230 million. Taylor v. United Technologies Corp., 354 Fed. Appx. 525 (2d Cir. 2009).

Secured dismissal of ERISA claims against BNY Mellon

Persuaded plaintiffs to dismiss voluntarily ERISA “stock drop” claims against our client, the independent fiduciary of BNY Mellon Corp.’s employer stock fund, by filing motion to dismiss. In re Bank of New York Mellon Corp. Foreign Exch. Trans. MDL (Sansano v. Fiduciary Counselors) (S.D.N.Y. 2012).

Young v Verizons Bell Atl Cash Balance Plan

Young v. Verizon’s Bell Atl. Cash Balance Plan, __ F. Supp. 2d __, 2009 WL 3677350 (N.D. Ill. Nov. 2, 2009). For Verizon, we secured a court order reforming a $1.7 billion drafting error in a pension plan formula. This was the first court order correcting a scrivener’s error in an ERISA plan.

Numerous amicus briefs on behalf of The ERISA Industry Committee

Filed amicus briefs on behalf of The ERISA Industry Committee in a variety of other groundbreaking cases, including Black & Decker v. Nord, 538 U.S. 822 (2003); Lockheed Corp. v. Spink, 517 U.S. 882 (1996); Patterson v. Shumate, 504 U.S. 753 (1992); Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009); Langbecker v. Electronic Data Sys. Corp., 476 F.3d 299 (5th Cir. 2007); and Montesano v. Xerox Corp., 256 F. 3d 86 (2d Cir. 2001).

IndyMac Bank Securities Class Actions

Represented the former CEO of IndyMac Bank in multiple securities and ERISA class actions.

Advised on groundbreaking “pension derisking” transactions involving billions of dollars, including the following:

• Represented 21st Century Fox on a spinoff and termination of its pension plan, including the accompanying group annuity purchase.
• Represented Verizon Communications on its pension plan’s $7.5 billion annuity purchase (one of the largest pension annuitization transactions in U.S. history), and successfully defended Verizon against an attempt by retirees to block the transaction in court.
• Represented Fiduciary Counselors on two pension derisking transactions, each involving a transfer of over $500 million in liabilities to insurance companies.

Murphy v. Verizon Communications, Inc., et al.

Covington successfully represented Verizon in an ERISA class action case brought by three retirees claiming the transfer of their pensions to a spin-off company violated various requirements of ERISA. The Fifth Circuit granted summary judgment in favor of Verizon after discovery. When the case grew to a class action, the Fifth Circuit eventually affirmed the dismissal of all claims.

LaRue v. DeWolff, Boberg & Assocs., Inc., 128 S. Ct. 1020 (2008) (counsel for amicus)

The U.S. Supreme Court held that a participant stated a colorable ERISA fiduciary breach claim for losses stemming from the alleged failure to implement investment directions for his 401(k) plan account. In a concurring opinion, Chief Justice Roberts cited our amicus brief for The ERISA Industry Committee in stating that such actions might need to be brought as benefits denial claims and subjected to exhaustion of administrative remedies.

Conkright v. Frommert

Covington successfully represented Xerox Corporation’s pension plan in this ERISA case in which the Court held that a plan administrator’s reasonable interpretation of the plan is entitled to deference even if the administrator’s initial interpretation was erroneous.

Representation of IBM in age discrimination suit

In the first appellate ruling on the question of whether cash balance plans are age discriminatory, obtained the Seventh Circuit victory reversing the trial court and holding that IBM’s cash balance plan was not discriminatory. The appellate victory avoided $1.4 billion in damages. Cooper v. IBM Personal Pension Plan, 457 F.3d 636 (7th Cir. 2006).

Taylor v. United Technologies Corp.

Taylor v. United Technologies Corp., 2009 WL 4255159 (2d Cir. Dec. 1, 2009), aff’g 2009 WL 535779, 46 Empl. Ben. Cas. (BNA) 1935 (D. Conn. Mar. 3, 2009). The Second Circuit affirmed the summary judgment entered in favor of our client United Technologies in a 401(k) plan expense class action lawsuit. The court upheld the rejection of all of plaintiffs’ claims concerning a variety of fiduciary decisions over more than a decade, for which plaintiffs had calculated alleged damages of $230 million.

Favorable settlement for GE

After fully briefing motions to dismiss a suit alleging breach of fiduciary duty under ERISA with respect to the GE stock component of GE’s 401(k) plan, based on a “stock drop” theory, secured settlement that was approved by the court. Cavalieri v. Gen. Elec. Co., 47 Empl. Ben. Cas. (BNA) 2719 (N.D.N.Y. 2009).

Favorable ruling for Verizon in age discrimination suit

For Verizon, in a companion case to a similar claim against Equitable, secured the first favorable ruling in the Second Circuit on claims that cash balance plans violate the age discrimination provision of ERISA. Hirt v. The Equitable Retirement Plan, 533 F.3d 102 (2d Cir. 2008).

Dismissal of ERISA notice and claims for Verizon

Secured district court dismissal of ERISA notice and fiduciary breach claims against our client Verizon, arising from the spin-off of a business, on the basis of the statute of limitations. Murphy v. Verizon Commc’ns, Inc., 50 Empl. Ben. Cas. (BNA) 1855 (N.D. Tex. 2010).

Dismissal of ERISA class action for AK Steel

Secured district court ruling dismissing a putative ERISA class action on the basis of the statute of limitations. Gelesky v. AK Steel Corp. Pensions Agmt. Plan, 828 F. Supp. 2d 935 (S.D. Ohio 2011).

Fifth Third Bancorp v. Dudenhoeffer

In a unanimous decision, the Supreme Court vacated a ruling that had gone against our client Fifth Third Bancorp in an ERISA case concerning Employee Stock Ownership Plans (ESOPs). The Court held that ESOPs are subject to rules designed to weed out meritless stock-drop cases at an early stage of the litigation.

Defending whistleblower claims

Defended claims threatened against a technology company in the US and the UK, involving alleged SOX whistleblower protections and unlawful detriment claims.

ERISA litigation in the Supreme Court

Successfully handled important ERISA litigation in the Supreme Court, including Conkright v. Frommert, 130 S. Ct. 1640 (2010) (requiring deference to the plan administrator’s interpretation of a plan, even though the administrator had previously relied on provisions that were not properly added to the plan), and Kennedy v. Plan Adm’r for Dupont Sav. & Invt. Plan, 129 S. Ct. 865 (2009) (applying ERISA’s “plan document” rule to affirm unanimously a plan administrator’s decision to follow a beneficiary designation that gave rights to a participant’s former spouse, even though a divorce decree had stated that the former spouse gave up her rights).

Multiple successes for independent contractors

Successfully defended Capital Cities/ABC, GE, the NFL, Verizon, and the Pharmaceutical Research and Manufacturers of America in separate suits against claims that independent contractors were entitled to benefits under company plans.