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With groundbreaking decisions in the U.S. Supreme Court and federal courts of appeal, we have successfully handled the spread of employee benefits litigation and contested agency proceedings, ranging from cases brought by individuals to class actions involving billions of dollars.
We have the requisite experience to represent clients in agency audits, investigations, and enforcement proceedings, and in challenges to plans’ tax-qualified status in U.S. Tax Court.
Cases that shaped ERISA law
We have litigated many of the key Supreme Court and appellate cases that have shaped the law under ERISA, including Supreme Court cases establishing the role of the plan administrator, the importance of plan documents and the liability of a non-fiduciary party in interest to plan fiduciaries. We achieved the first appellate court victories upholding the cash balance formula against age discrimination claims and permitting plans to correct costly scrivener’s errors in plan documents.
Billions at stake
For sophisticated clients such as Verizon, GE, IBM, Schering-Plough and UTC, we have successfully defended ERISA claims where the potential exposure ranged from the hundreds of millions to several billion dollars.
Decades of regulatory experience
Our ERISA litigators work seamlessly with our highly skilled ERISA advisory practitioners who bring decades of experience dealing with Treasury and the Department of Labor, as well as a broad range of clients, on emerging issues under ERISA.
Recognized litigation leaders
We have litigated ERISA cases throughout the country. Our ERISA litigators bring to the courtroom litigation skills developed in a range of cases, including jury trials and complex civil litigation, and we are recognized as one of the leading ERISA litigation practices in the country by both Chambers USA and Legal 500.
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.
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.
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.
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.
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).
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).
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).
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 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).
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).
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.
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).
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).
Represented the former CEO of IndyMac Bank in multiple securities and ERISA class actions.
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.
Defended claims threatened against a technology company in the US and the UK, involving alleged SOX whistleblower protections and unlawful detriment claims.
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.
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.
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).
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).
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.
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.
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.
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., 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.
August 14, 2015, Law360
July 16, 2015, Inside Compensation
The U.S. Court of Appeals for the Sixth Circuit recently affirmed the crucial importance of accurate plan summaries in the post-Amara world. To date, part of the legacy of CIGNA v. Amara has been an uptick of cases in which ERISA plaintiffs allege a material mismatch between a plan document and a summary plan description … Continue Reading
July 13, 2015, Inside Compensation
A recent Massachusetts district court decision in In Re Fidelity ERISA Float Litigation highlights the need for ERISA fiduciaries to evaluate the treatment of a particular type of interest called “float income” to ensure compliance with ERISA. The Department of Labor has long taken the position that retention of float income without sufficient disclosures can … ...
March 24, 2015, Inside Compensation
For sponsors and fiduciaries of employee benefit plans, the Amara case has presented many interesting and important issues that have been discussed at length in this blog and elsewhere. However, the most recent chapter in this long-running dispute has not garnered nearly as much attention as either the Supreme Court or Second Circuit decisions that … Continue ...
Not all benefits claims are created equal. At least, not from a risk management perspective. Benefits claims that reach issues applicable to a broad class of participants have the potential to exponentially increase liabilities. Kifafi v. Hilton illustrates this risk. A recent court order quantified the cost of a judgment that Hilton Hotels and its … Continue ...
In Lees v. Munich Reinsurance America, Inc., a federal district court in New Jersey recently held that an oral misrepresentation could serve as the basis for a fiduciary breach claim. The plaintiff in Lees worked for American Re-Insurance Company (a predecessor of the defendant), but was being paid by a related entity. Several years into … Continue Reading
March 3, 2015, Inside Compensation
Two cases decided in January—one by the Sixth Circuit and another by the District Court for the District of Columbia—offer a cautionary tale to plan sponsors who rely on a statute or regulation that allows retroactive amendments to tax-qualified plans. Both cases involved a change to the interest and mortality assumptions that pension plans use … Continue Reading
February 3, 2015, Inside Compensation
A complaint filed this month against FedEx Corporation and its pension plan asks a court to apply the Supreme Court’s decision in Windsor v. United States retroactively. The case is Schuett v. FedEx Corporation. The plaintiff is the surviving same-sex spouse of a FedEx pension plan participant who died six days before the Court issued … Continue Reading
January 30, 2015, Inside Compensation
Earlier this week, the Supreme Court issued its opinion in M&G Polymers USA v. Tackett, addressing the question whether a collective bargaining agreement is presumed to provide vested retiree medical benefits. Unlike pension benefits, welfare benefits, such as retiree medical coverage, are not subject to statutory vesting rules under ERISA. Accordingly, ...
January 29, 2015, Inside Compensation
What happens when a plan participant seeks benefits that he or she claims are set forth in a summary plan description (“SPD”) but are found nowhere in the plan itself? On one level, the Supreme Court in Cigna Corp v. Amara answered this question decisively: SPDs and other written disclosures about the plan do not … Continue Reading
December 15, 2014, Inside Compensation
In the wake of investment losses from the 2008 market downturn, many fiduciaries of employee benefit plans faced lawsuits brought by plan participants. Most cases involved defined contribution plans, in which participants sought to recover investment losses that had directly reduced their individual benefits. In contrast, fewer cases were brought against ...
October 23, 2014, Bloomberg BNA
Covington's Jeffrey Huvelle is quoted regarding his representation of Verizon:
“Verizon is pleased that the Fifth Circuit agreed with Judge Fish's well-reasoned decision that Verizon's spinoff complied with ERISA,” Huvelle told Bloomberg BNA on Oct. 15. He added that the document disclosure claims at issue “related to SuperMedia, not Verizon.”
July 10, 2013, Covington E-Alert
May 15, 2012, BNA Pensions & Benefits Reporter
June 23, 2010
WASHINGTON, DC, June 23, 2010 — Covington & Burling LLP received 85 individual mentions and 23 practice mentions in the Legal 500 US 2010 edition. Legal 500 reviews the strengths and strategies of law firms in more than 90 countries in Europe, the Middle East, Asia, North and South America, and the Caribbean.
Here are the Covington lawyers and practices ...
June 16, 2010
WASHINGTON, DC, June 16, 2010 — Covington & Burling LLP received 112 individual mentions and 44 practice mentions in Chambers USA 2010. The guidebook, which ranks lawyers by state and national practice area, is designed to identify the most skilled legal practitioners based on the qualities most valued by clients.
Here are the Covington lawyers and practices ...
May 7, 2010
WASHINGTON, DC, May 7, 2010 — Covington & Burling LLP represented the prevailing parties in Conkright v. Frommert, a significant case in the U.S. Supreme Court concerning the Employee Retirement Income Security Act (ERISA). The Court’s ruling in favor of the Xerox Corporation pension plan and the plan’s administrator has implications for many other ERISA plans. ...
June 12, 2009
WASHINGTON, DC, June 12, 2009 — Covington & Burling LLP received 100 individual mentions and 40 practice mentions in Chambers USA 2009. The guidebook, which ranks lawyers by state and national practice area, is designed to identify the most skilled legal practitioners based on the qualities most valued by clients.
Here are the Covington lawyers and practices ...
November 2008, Covington E-Alert
June 16, 2008
WASHINGTON, DC, June 16, 2008 — Covington & Burling LLP received 81 individual mentions and 45 practice mentions in the newly released 2008 Chambers USA. The guidebook, which ranks lawyers by state and national practice area, is designed to identify the most skilled legal practitioners based on the qualities most valued by clients.
Here are the Covington ...
WASHINGTON, DC, September 28, 2007 — In its inaugural year, The Legal 500 US has recognized Covington & Burling LLP’s practice excellence in 23 fields. Compiled in four volumes published in 2007, the Legal 500 US singles out the following practices:
Broadcasting and Digital
Copyright - regional
Copyright Litigation - regional
September 6, 2007
WASHINGTON, DC, September 6, 2007 — Covington & Burling LLP received 115 individual mentions in 38 areas of law in the 2008 edition of The Best Lawyers in America. This annual compilation of top US lawyers is based on peer-review surveys and is used as a referral guide in the legal profession. The recipients are as follows:
Administrative: E. Edward Bruce and ...
June 18, 2007
WASHINGTON, DC, June 18, 2007 — Covington & Burling LLP received 44 practice mentions and 74 individual mentions in the newly released 2007 Chambers USA guidebook. The 2007 edition of Chambers USA attempts to identify the most skilled legal practitioners throughout the country based on the qualities most valued by clients. Covington attorneys have been ...
August 7, 2006
WASHINGTON, DC, August 7, 2006 - The United States Court of Appeals for the Seventh Circuit ruled today that IBM's pension plan formula is both lawful and age-neutral. The decision was the first by a federal appeals court to address the closely-watched question of whether hundreds of "cash balance" pension plans across the country are unlawful under an age ...
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