By Carmen Castro-Pagan, Bloomberg BNA
The law firm Izard Kindall & Raabe LLP tops the list of firms filing ERISA class actions against big business and larger employers in the past year.
The Connecticut-based law firm has filed 19 lawsuits under the Employee Retirement Income Security Act since November 2015, according to analysis using Bloomberg Law Dockets and Bloomberg BNA’s ERISA Litigation Tracker. The firm has targeted religiously affiliated organizations, health insurer giants and financial services companies, including SSM Health Care, Mercy Health, Cigna Corp., UnitedHealthGroup Inc., Edward D. Jones & Co., Franklin Resources, Voya Retirement Insurance & Annuity Co., Massachusetts Mutual Life Insurance Co. and Fidelity Management Trust Co.
Schlichter Bogard & Denton LLP closely follows with 18 class actions filed in the past 12 months. The St. Louis-based law firm is representing plaintiffs in actions against a wide range of big-name entities, including Northrop Grumman Corp., Chevron Corp., Oracle Corp., Banner Health, Reliance Trust and 12 elite universities.
During 2015 and 2016, court dockets across the nation had an uptick in ERISA lawsuits seeking class action treatment for participants who accuse their plan sponsors and administrators of breaching their fiduciary duties.
This recent wave of ERISA litigation has targeted three main industries:
private universities that allegedly included too many investment options in their retirement plans,
religiously affiliated organizations that allegedly underfunded their pension plans, and
financial management institutions that allegedly filled their plans with high-cost, poorly performing in-house funds.
This litigation uptick is making large employers rely more on certain boutique and big law firms to defend them. In the same way, it appears participants who want to challenge their plan fiduciaries over how they manage their retirement plans are relying on a small pool of plaintiffs law firms.
Church Plan Litigation.
Four law firms, including Izard Kindall, are leading the way in challenging how certain religiously affiliated hospitals administer their employees’ pension plans. In some of the cases, the firms have joined forces to litigate against the institutions, while in others, the firms have battled to be lead counsel. According to the lawsuits, the hospitals are accused of massively underfunding their pension plans by improperly relying on an ERISA exemption for church plans.
Keller Rohrback LLP has filed 15 ERISA lawsuits since last November, nine of them against religiously affiliated entities. Its main targets include Hospital Sisters Health System, Wheaton Franciscan Services Inc. and Holy Cross Hospital. The almost 100-year-old firm is also representing participants in lawsuits against Express Scripts, Anthem Inc., Bank of New York Mellon and JPMorgan Chase & Co.
With seven offices in the U.S., law firm Cohen Milstein Sellers & Toll PLLC is representing plaintiffs in 12 new lawsuits. Ten of these class actions are against no-profit hospitals claiming that ERISA’s funding requirements don’t apply to them. Cohen Milstein has recently filed lawsuits against Mercy Health, OSF Healthcare Systems and St. Joseph’s Hospital & Medical Center, among others.
Kessler Topaz Meltzer Check LLP is also representing plaintiffs in 10 church plan-related lawsuits. The firm filed one additional lawsuit against M&T Bank Corp. for a total of 11 lawsuits filed in the past year.
Investment Strategy, Proprietary Funds.
Schneider Wallace Cottrell Konecky Wotkyns LLP has filed eight lawsuits, mainly challenging the investment strategies plan sponsors and other fiduciaries used in retirement plans. The firm’s targets include Verizon Communications Inc., American Airlines Inc., Fidelity Management Trust Co., Safeway Inc. and CVS Health Corp.
Nichols Kaster PLLP and Bailey & Glasser LLP have filed seven lawsuits each in the past year against a wide range of financial companies.
Leading the trend of lawsuits against financial institutions that include in-house investment funds in their employees’ 401(k) plans is Nichols Kaster. The firm has filed six lawsuits against big-name companies, including New York Life Insurance Co., American Century Services LLC, M&T Bank Corp., Deutsche Bank Americas Holding Corp. and Putnam Investments LLC. According to the lawsuits, the practice of including proprietary funds in their employees’ retirement plans has caused participants to pay millions of dollars in excessive and unnecessary fees.
With 11 offices across the country, Bailey & Glasser is representing clients in class actions against Metropolitan Life Insurance Co., Neuberger Berman Group LLC and Wilmington Trust N.A.
New York-based law firm Zamansky LLC is currently representing plaintiffs in five lawsuits against companies that, in most cases, are accused of allowing poorly performing company stock to be invested in their employees’ 401(k) plans, causing millions of dollars in losses. The firm has recently filed lawsuits against Wells Fargo & Co., L-3 Communications Corp., Fidelity Management Trust Co. and Edison International Inc.
Plaintiffs’ Standpoint.
The main goals behind these lawsuits are to reduce industry fees and prevent abusive practices, attorneys said.
Just as courts have noted that the excessive-fee cases brought down fees in the industry, the impact of these lawsuits will be to cause the fees to continue to fall, Jerome Schlichter, the founder and managing partner of Schlichter Borgard, told Bloomberg BNA Nov. 4.
“Our goal generally is to remedy harm and to get companies and their management to curb and prevent abusive practices,” Robert A. Izard, a partner at Izard Kindall, told Bloomberg BNA Nov. 3.
One of the main challenges that plaintiffs face with these lawsuits is “bringing the cases to prompt resolution as a result of the time it takes to litigate a case,” Izard said. Another challenge is to explain to the courts that these practices have cost employees and retirees significant amounts of money that they should have been able to use to build their retirement assets, Schlichter said.
Asked how the firm is attracting plaintiffs to file these lawsuits, Izard said that, as “like many businesses these days,” it get client leads through the firm’s website and it receives referrals from various sources.
He added that another reason could be the firm’s reputation and the representation it has provided, as well as the results it has achieved.
“Many people have contacted us because they are aware of our work in representing employees and retirees who have lost money in their retirement plan,” Schlichter said.
To contact the reporter on this story: Carmen Castro-Pagan in Washington at ccastro-pagan@bna.com
To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bna.com