Representative Matters

ERISA and Benefits Litigation
• Retirement Plan Litigation

  • Defense against class action claims filed by ERISA defined benefit plan participants against U.S. Bank and its plan fiduciaries arising from its investments in proprietary funds and 100% equities-strategy. Thole v. U.S. Bank, N.A., 873 F.3d 617 (8th Cir. 2017), aff’d, 140 S. Ct. 1615 (2020) (5-4 decision on constitutional standing grounds).
  • Defense against class action claims alleging that 401(k) and 403(b) plan fiduciaries breached their duties in selecting and retaining expensive, underperforming mutual funds. Schave v. CentraCare Health System, 2023 U.S. Dist. LEXIS 13786 (D. Minn. Jan. 27, 2023).
  • Obtained arbitration award increasing pension of employee of major manufacturer.
  • Defense against class action challenging offsets to pension benefits, including extensive evidence and expert testimony involving the interplay between a defined benefit plan and social security/worker’s compensation benefits. Leighton v. Delta Air Lines, Inc., 2022 U.S. Dist. LEXIS 60211 (D. Minn. Mar. 31, 2022).
  • Defense of ERISA class action claims that trustees of employee stock option plan (ESOP) breached their fiduciary duties with respect to the valuation of the company’s stock. Vigeant v. Meek, 352 F. Supp. 3d 890 (D. Minn. 2018), aff’d, 953 F.3d 1022 (8th Cir. 2020).
  • Defense against class action claims against sponsor and fiduciaries of 401(k) plan alleging fiduciary breaches in Plan’s investment in mutual funds that sponsor’s affiliate managed.  Meiners v. Wells Fargo & Co., 2017 U.S. Dist. LEXIS 80606 (D. Minn. May 25, 2017), aff’d, 2018 U.S. App. LEXIS 21624 (8th Cir. Aug. 3, 2018).
  • Sought declaration against defendant class of 2,500 airline pilots that post-bankruptcy target benefit plan complied with benefit accrual provisions under ADEA and ERISA. Northwest Airlines, Inc. v. Phillips, 675 F.3d 1126 (8th Cir. 2012).   
  • Co-counsel representing fiduciaries of 401(k) and 403(b) plans against  claims alleging mismanagement of brokerage window and inappropriate selection of investment options.  Larson v. Allina Health System, 350 F. Supp. 3d 780 (D. Minn. 2018).
  • Defended against class action claims alleging age discrimination in retirement plan design.  Mitchell-White v. Northwest Airlines and Delta Air Lines, 2011 WL 671630 (S.D.N.Y. Feb. 24, 2011), aff'd, 446 Fed. App’x. 316 (2d Cir. 2011), cert. denied, 132 S. Ct. 2432 (2012).
  • Defended against class actions seeking recovery of losses to 401(k) plan investments in company stock when employer’s share price fell, including Hastings v. Gary Wilson, 516 F.3d 1055 (8th Cir. 2008); Morrison v. MoneyGram International, Inc., 607 F. Supp. 2d 1033 (D. Minn. 2009); and In Re ADC Telecommunications ERISA Litigation, 2005 WL 2250782 (D. Minn. September 15, 2005).
  • Amicus counsel for the American Benefits Council in support of plan sponsor defending against class action claims alleging breach of fiduciary duty in the calculation of pension benefits.
  • Represented fiduciaries against challenge to their selection of funds offered by affiliates of financial institutions. Figas v. Wells Fargo & Company, 2010 U.S. Dist. LEXIS 79965 (D. Minn. Apr. 6, 2010).
  • Represented employer defending against claims for ERISA severance benefits, including Johnson v. U.S. Bancorp, 424 F.3d 734 (8th Cir. 2004), and Anderson v. U.S. Bancorp, 484 F.3d 1027 (8th Cir. 2007).
  • Represented fiduciaries against nationwide class action seeking interest on payments of benefits under welfare plan. Jackson v. Fortis Benefits Insurance Company, 105 F. Supp. 1055 (D. Minn. 2000), aff’d, 245 F.3d 748 (8th Cir. 2001).
  • Defended against claims that employer violated age discrimination prohibitions in design of pension plan.  Mahoney v. Northwest Airlines, Inc., 2004 WL 114946 (D. Minn.).
  • Represented Fortune 500 companies and individuals in DOL audits.

  Health and Welfare Plan Litigation

  • Represented plaintiff employee association to recover wrongfully withheld premium reserve from insurer. 3M Employees' Benefit Trust Ass'n v. Connecticut General Life Ins. Co., 2003 WL 124027 (D. Minn. 2003).
  • Defended pharmacy benefit manager (PBM) against class action claims on behalf of individuals who purchased the EpiPen auto-injector device, including against motions for consolidation with multi-district antitrust litigation, ERISA prohibited transaction claims, and certification of nationwide class. In re EpiPen ERISA Litig., 341 F. Supp. 3d 1015 (D. Minn. 2018); 2020 U.S. Dist. LEXIS 139066 (D. Minn. Aug. 5, 2020).
  • Defended against first nationwide class action alleging violations of the Mental Health Parity and Addiction Equity Act and Affordable Care Act.  New York State Psychiatric Ass’n v. UnitedHealth, 980 F. Supp. 2d 527 (S.D.N.Y. 2013), rev’d in part and aff’d in part, 798 F.3d 125 (2nd Cir.), cert denied, 136 S. Ct 317 (2015).  
  • Defended over 300 health plans and their claims administrator against “mass action” claims for health benefits described by the judge as “perhaps the most complex case pending in [the United States District Court for] the Central District of California”).  Almont Ambulatory Care Center v. UnitedHealth Group, Inc., 2016 WL 2851298 (C.D. Cal. May 13, 2016), aff’d, 2019 WL 2448325 (9th Circuit, June 11, 2019). See also id. 99 F. Supp.3d 1110 (C.D. Cal. 2015) (motions with respect to fiduciary and statutory claims); 121 F. Supp.3d 950 (C.D. Cal. 2015) (denying motion to dismiss counterclaim to recover amounts paid to health care providers).
  • Defense against class claims alleging violations of state statutes regarding patient responsibility for chiropractic services against five health insurers. Larson v. United Healthcare Ins. Co., 723 F.3d 905 (7th Cir. 2013).
  • Obtained reversal of district court decision and compelling arbitration of class challenge to “smoker’s exclusion” in business health plan.  Franke v. Poly-America Medical and Dental Plan, 555 F.3d 656 (8th Cir. 2009).     
  • Defended employer against fiduciary, discrimination, and RICO claims brought by 67 former employees, who alleged that a series of complex corporate transactions and downsizing decisions entitled them to over $50 million in severance pay and other damages.
  • Represented various TPAs in claims alleging improper administration of group health plan benefits.
Business Commercial
• • Defense against claims alleging that pharmacy breached state common law duties for refusing to fill a prescription for ivermectin to treat COVID-19.  See Salier v. Walmart, Inc., No. 22-CV-0082 (PJS/ECW), 2022 U.S. Dist. LEXIS 148684 (D. Minn. Aug. 19, 2022).
  • Defended against class action claims that scanning errors caused thousands of SAT scores to be incorrect.  Russo v. NCS Pearson and the College Board, 462 F. Supp. 2d 981 (D. Minn. 2006).
  • After commencing declaratory judgment action and bringing preliminary injunction motion, successfully resolved contract dispute between copyright owner of psychological tests and foreign business that translated and adapted those tests for the Spanish market.
  • Obtained orders after trials before the Trademark Trial and Appeal Board (TTAB) declaring trademark registration rights in favor of water filtration business. OTI v. GE Osmonics, Inc., 2004 TTAB Lexis 188 (March 30, 2004), 2004 TTAB Lexis 30 (Jan. 29, 2004) Trademark Trial & Appeal Board.
  • Obtained judgments in favor of state insurance guaranty funds in disputes involving claims and assessments. Wisconsin Insurance Security Fund v. Wisconsin Reinsurance Corporation, 704 N.W. 2d 44 (Wis. App. 2005); Minnesota Insurance Guaranty Association v. Integra Telecom, Inc., 697 N.W. 2d 223 (Minn. App. 2005).
  • Represented various insurers and businesses in responding to civil investigation demands and administrative subpoenas.
  • Represented life, health and disability insurers in over one hundred lawsuits seeking benefits under individual and group disability policies.
  • Served as personal counsel for insureds in various class actions and major claims seeking coverage and reimbursement of defense costs.