ERISA Litigation on the Rise: Fiduciary Risks, TPA Failures, and How to Litigate Them

Benjamin J. Conley | Seyfarth Shaw LLP

Ben has a broad-based practice focusing on all aspects of employee benefits, executive compensation, fiduciary governance and data privacy. He garners nationwide recognition for his thought-leadership on health and welfare plan design and compliance issues. He regularly speaks and publishes on cutting-edge benefits developments, having counseled clients through the turbulent times of the Affordable Care Act’s implementation and the COVID-19 benefits-related upheaval.

Ben’s involvement with various policy organizations, including SHRM, the American Benefits Council, the ERISA Industry Committee and the Chamber of Commerce allow him to keep clients ahead-of-the-curve on breaking benefits developments so they can inform their internal stakeholders of what to expect. He regularly provides input to regulatory agencies and even Congress on pending proposals to ensure his clients have a voice in the process.

Ben’s broad-based practice allows him to counsel clients of all industries, size and focus, including private sector, union, multiemployer, public sector, higher education, and health care. He also regularly advises vendor-side organizations on health and welfare products and services.

Prior to joining Seyfarth, Ben was a lead articles editor for the Washington & Lee University Law Review. Outside of work, Ben enjoys introducing his Chicago friends and family to the finer aspects of his Kentucky cultural upbringing, including the Derby, the Wildcats, and the riveting tale of the Florence Y’all Water Tower.

Caroline E. Pieper | Seyfarth Shaw LLP

Caroline focuses her practice on health and welfare benefit plans, ancillary benefits, and the laws and regulations affecting these plans and related programs. Among other things, Caroline counsels clients on plan documentation, fiduciary issues, mental health parity, health care reform, COBRA, HIPAA, flexible benefits, wellness programs, price transparency, and more. Not only does she handle legal matters for both fully insured and self-funded plans, she also routinely manages plan administration, design, documentation, and implementation for both single employer and multiemployer plans. Caroline assists in drafting, revising, and negotiating service provider agreements; ensuring disclosure and reporting compliance to government agencies and individuals; and facilitating both internal and external audits of benefit plans.

Caroline further counsels her clients on all HIPAA- and Health Information Technology for Economic and Clinical Health Act-related matters. She performs client-tailored HIPAA training; drafts, revises, and negotiates business associate agreements; drafts and implements HIPAA policies and procedures; performs breach analyses; assists in breach notification; and ensures compliance with other federal and state laws relating to privacy and security of health-related data.

Caroline began her legal career in employee benefits and has enhanced her practice over time through representation of nationally recognized, local, and global employers, third-party administrators, health care providers, wellness vendors, insurance companies, accountants, brokers, and individuals. Her experience representing a variety of entities has provided her with a well-rounded understanding of all of the issues impacting an agreement, plan, or benefit offering. She works with her clients to achieve satisfactory results that meet both their immediate and long-term needs.

Sam M. Schwartz-Fenwick | Seyfarth Shaw LLP

Sam represents employers in complex ERISA and traditional labor matters. He is passionate about helping clients build strong workplace cultures that uphold high performance standards, identify and mitigate legal risk, and put in place practices to enhance inclusion and create welcoming spaces for all employees.

Sam is a counselor, a negotiator, and a litigator. He views his role as helping employers to find ways to get to yes by developing creative solutions to mitigate risk while still achieving business goals.

He co-leads Seyfarth’s cultural flashpoints taskforce. In this role, he counsels clients on how to navigate high-risk situations in a way that is true to their unique corporate cultures while being cognizant of the complex web of state and federal laws that may apply. Sam also counsels employers on how they can better leverage their employee benefit offerings to recruit and retain top talent. He also provides day-to-day counseling and advice to clients about the various laws affecting the employment relationship, especially as it relates to diversity, equity, and inclusion.

Sam brings this same practical work ethic and creative energy to his litigation work. Sam is an experienced and effective ERISA litigator. He handles both large portfolios of single-plaintiff benefits-related litigation as well as defending clients in significant and cutting-edge class actions. He has litigated at district and circuit courts throughout the United States.

In addition to his ERISA litigation practice, Sam devotes significant time to working with clients in all facets of their collective bargaining relationships. He is skilled at labor negotiations and adept at representing clients in both arbitration and NLRB-related litigation.

Sam speaks nationwide and publishes regularly on a variety of employment law and litigation topics, and issues regarding diversity and inclusion in the legal profession. He has serves as a Senior Editor to Employee Benefits Law (ABA).

Sam leads the firm’s LGBT Affinity Group. He is the incoming president of his synagogue Anshe Emet.

I. Emerging litigation trends | 1:00pm – 1:30pm

• Analysis of recent class actions targeting welfare plan fiduciaries, including claims related to PBM arrangements, out-of-network reimbursements, and improper use of forfeitures

II. Fiduciary designation and oversight | 1:30pm – 2:00pm

• Understanding how fiduciary status is determined under ERISA and best practices for monitoring TPAs and other service providers

Break | 2:00pm – 2:10pm

III. Lessons from recent case law | 2:10pm – 2:40pm

• Insights from recent decisions at the summary judgment and trial stages, and what they reveal about courts’ expectations for prudent fiduciary conduct

IV. Risk mitigation strategies | 2:40pm – 3:10pm

• Practical steps plan sponsors can take to strengthen fiduciary governance, improve documentation, and reduce litigation risk