Our experience extends across the spectrum of employee benefits litigation:

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1 ERISA LITIGATION ERISA AND EMPLOYEE BENEFITS LITIGATION Covington & Burling LLP represents clients such as GE, IBM, Schering-Plough, United Technologies, Verizon, Xerox, the National Football League, and The ERISA Industry Committee in a wide variety of litigation and contested agency proceedings involving employee benefit plans. The defining strengths of our benefits litigation practice are: Outstanding trial and litigation skills. Unsurpassed expertise in the highly technical area of employee benefits law. Ability to handle the regulatory side as well as the courtroom side of benefits disputes. We have litigated ERISA class actions involving all of the key issues facing employers in recent years. We have won ground-breaking decisions on behalf of some of the largest and most sophisticated companies in the world. ERISA Litigation The strength and breadth of Covington s litigation practice is reflected in our selection by the American Lawyer as one of its top five Litigation Departments of the Year in Chambers USA and Legal 500 have repeatedly placed Covington on their annual lists of leading ERISA litigation firms nationwide and have recognized partner Jeffrey Huvelle as one of the nation s leading ERISA litigators. Our experience extends across the spectrum of employee benefits litigation: Employer stock drop cases. 401(k) plan expense litigation. Fiduciary duty litigation, including misrepresentation, imprudent investment, and non-disclosure claims. Plan design and pension benefits litigation. Employee misclassification claims including contractor and contingent employee claims. Plan withdrawal and partial plan termination claims. Claims of improper pricing against health benefit plans and health care providers. ERISA preemption litigation. Cash balance and other hybrid plan litigation including: o Age discrimination claims. o Whipsaw claims. o Backloading claims. Miscalculated benefits claims. BEIJING BRUSSELS LONDON NEW YORK SAN DIEGO SAN FRANCISCO SILICON VALLEY WASHINGTON

2 Recent representative cases include: Conkright v. Frommert, 130 S.Ct (2010). In a case in which we began representing the Xerox pension plan following an adverse decision in the Second Circuit, 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, despite a prior mistaken interpretation adopted in good faith. The Court s ruling in favor of the Xerox Corporation pension plan and the plan s administrator has implications for many other ERISA plans. Covington secured the victory despite vigorous opposition from the Solicitor General, the Department of Labor, and the Internal Revenue Service. Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 129 S. Ct. 865 (2009) Together with co-counsel, we represented DuPont in the Supreme Court of the United States, securing a unanimous decision in favor of the DuPont Savings and Investment Plan. The Court held that DuPont s plan administrator did its statutory ERISA duty when it paid deceased worker William Kennedy s retirement benefits to his ex-wife, whom he had named as his beneficiary, even though his divorce decree stated that his wife gave up any interest in the account. The decision is an important victory for benefit plan administrators because plan administrators may now rely on the beneficiary designations that follow the plan s terms. LaRue v. DeWolff, Boberg & Assocs., Inc., 128 S. Ct (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. Harris Trust and Savings Bank v. Salomon Smith Barney, Inc., 530 U.S. 238 (2000). The Supreme Court reversed summary judgment against our client Harris Trust and held that ERISA permitted a fiduciary to sue a non-fiduciary party in interest that had participated in a prohibited transaction. In re Schering Plough Corp. ERISA Litig., 2009 WL (3d Cir. Dec. 21, 2009). The Third Circuit vacated a district court's certification of a class of participants in a "stock drop" lawsuit against our client Schering Plough that alleges breach of fiduciary duty for imprudent retention of a company stock fund in a 401(k) plan. Taylor v. United Technologies Corp., 2009 WL (2d Cir. Dec. 1, 2009), aff g 2009 WL , 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. Hirt v. The Equitable Retirement Plan, 533 F.3d 102 (2d Cir. 2008). For Verizon, in a case argued in tandem with a similar claim against Equitable, we secured the first favorable ruling in the Second Circuit on claims that cash balance plans violate the age discrimination provision of ERISA. Miller v. Xerox Corp. Ret. Income Guar. Plan, 464 F.3d 871 (9th Cir. 2006) (amended panel opinion), cert. denied (2007). In a case in which we began representing the defendants following an unfavorable ruling by the Ninth Circuit, we persuaded the panel to withdraw its prior decision (447 F.3d 728) and substitute a substantially less onerous ruling concerning benefit offsets made by the defendant pension plan. 2

3 Cooper v. IBM Personal Pension Plan, 457 F.3d 636 (7th Cir. 2006), cert. denied (2007). In the first appellate ruling on the question of whether cash balance plans are age discriminatory, the Seventh Circuit reversed the trial court and held that IBM s cash balance plan was not discriminatory. The appellate victory avoided $1.4 billion in damages. Edes v. Verizon Communications, Inc., 417 F.3d 133 (1st Cir. 2005). The First Circuit affirmed the trial court s dismissal of all claims against our client Verizon in an action seeking to establish the right of temporary employees to participate in company benefit plans. Young v. Verizon s Bell Atl. Cash Balance Plan, F. Supp. 2d, 2009 WL (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. Cavalieri v. GE, 2009 WL , 47 Empl. Ben. Cas. (BNA) 2719 (N.D.N.Y. Aug. 6, 2009). After we fully briefed 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, the plaintiffs agreed to settlement talks. The resulting class settlement agreement was approved by the court. Adams v. IBM Personal Pension Plan, 2008 WL (S.D.N.Y. 2008). The district court dismissed a putative ERISA class action on the basis of res judicata, due to the dismissal of substantially identical claims in a prior lawsuit. Keen v. Lockheed Martin Corp., 486 F. Supp. 2d 481 (E.D. Pa. 2007). The district court granted summary judgment in favor of our client General Electric, ruling that the statute of limitations barred claims by contingent workers that they were wrongfully denied benefits. Walker v. Pharmaceutical Research & Manufacturers of Am., 439 F. Supp. 2d 103 (D.D.C.), mot. to amend denied, 461 F. Supp. 2d 52 (D.D.C. 2006). The district court granted summary judgment in favor of our client PhRMA against claims for benefits brought by an independent contractor. Romano v. Verizon Comms. Inc., 2005 WL 39916, 34 Empl. Ben. Cas. (BNA) 1573 (S.D.N.Y. 2005). The district court granted our client s motion for summary judgment on claims that an alleged failure to advise employees of an enhanced separation program was a breach of fiduciary duty. Covington 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). Agency Proceedings Covington has a superb record in contested agency proceedings as well as in the courts. Our lawyers have held important posts at the Treasury Department, Labor Department, Justice Department, Department of Health and Human Services, and Securities and Exchange Commission, as well as with congressional committees that oversee employee benefits. Drawing on the experience of these lawyers, we have successfully represented clients in investigations and enforcement proceedings brought by the Department of Labor, the Pension Benefit Guaranty Corporation, and the EEOC. In addition, we have successfully defended against IRS efforts to disqualify pension and profit-sharing plans and represented plan sponsors in tax qualification litigation in U.S. Tax Court. 3

4 We also excel at converting federal regulators from potential adversaries into allies in private litigation. Regulators can influence the outcome of private litigation in many ways for example, by issuing interpretations of statutes and regulations or by granting rulings and determination letters. In a number of instances we have persuaded federal regulators to provide valuable support for our clients positions in litigation. Recent examples of agency representations include: We were brought in at the late stages of a Labor Department enforcement matter that had been handled by another law firm. The Department was on the brink of litigation seeking to impose a multi-million dollar liability on the plan sponsor. We refocused the company s legal and policy positions to be more persuasive to the Department and, in a matter of months, persuaded the national office of the Department to direct a settlement of the case for less than 1% of the amount asserted by its regional enforcement office. We secured an exemption from the Labor Department that prevented a major financial institution from being forced to abandon its multi-billion dollar pension trust and asset management business following a criminal investigation by the Department of Justice. After designing the strategy that secured summary judgment for our client in the Eaton v. Onan Corp. cash balance case, 117 F. Supp. 2d 812 (S.D. Ind. 2000), we successfully led three-party negotiations with the Internal Revenue Service and the plaintiffs to settle remaining issues still pending in both Tax Court and federal district court. As a result of the negotiations, the company procured from the IRS the only favorable determination letter issued to a cash balance plan during a six-year moratorium. We represented several companies in early warning proceedings before the Pension Benefit Guaranty Corporation, in which the PBGC sought substantial additional pension funding or guarantees as a condition of permitting major corporate transactions to proceed. In each case, we negotiated a resolution that allowed our client to complete the transaction on schedule without making any financial concessions to the PBGC. We persuaded the Labor Department to forgo any claim of liability in an investigation of a major health care provider s rebate practices. The Department had initially sought to recover more than $60 million from our client. We obtained an IRS determination letter supporting the company s position in a dispute concerning union-negotiated plant closing benefits, effectively reversing an arbitration decision against the company. We also secured the dismissal of the union s subsequent declaratory judgment action challenging the determination letter in Tax Court. We helped persuade the EEOC to issue an administrative exemption for plans that coordinate retiree medical benefits with Medicare, reducing the litigation exposure faced by a number of our clients whose health plans have this design. When the Labor Department threatened enforcement action against our client in connection with the refinancing of an ESOP loan, we formed a coalition of ESOP sponsors and persuaded the Department to announce a substantial retrenchment of its enforcement position in Field Assistance Bulletin We have assisted the sponsors of a number of cash balance and hybrid plans in obtaining Section 7805(b) relief and IRS determination letters. 4

5 Pre-Litigation and Settlement Advice We also bring our expertise and creativity to bear in providing pre-litigation counseling about employee benefits disputes. Important advantages can be gained or lost at the administrative stage of a benefits claim, before a dispute reaches the courts. We frequently assist clients in building an administrative record that discourages claimants from bringing suit or that positions a dispute for favorable resolution at the courthouse. Other pre-litigation services that we provide include reviewing existing plan documents and administrative practices for potential litigation exposures, drafting new plan provisions designed to increase an employer s control over where and when the employer may be sued for benefits, and advising on fiduciary insurance coverage. We are experienced at structuring favorable settlements of employee benefits disputes. Our employee benefits practitioners Design settlements in a tax-efficient manner. Successfully navigate the prohibited transaction issues that can arise from benefit plan settlements. Obtain favorable IRS determination letters for settlements involving plan changes. In a number of cases, our benefits practitioners have structured settlements that enabled clients to pay litigation expenses out of existing benefit plan assets rather than out of the client s operating income. MEMBERS OF THE ERISA AND EMPLOYEE BENEFITS LITIGATION PRACTICE To provide the most effective representation in employee benefits disputes, a law firm must team top-flight, experienced ERISA litigators with skilled ERISA advisory practitioners. The firm must understand the practical aspects of plan administration, possess the technical skills to work closely with benefits experts such as actuaries, and command the respect of federal regulators. No firm combines all of these attributes more effectively than Covington. Covington offers outstanding representation in all aspects of employee benefits disputes from pre-litigation advice to courtroom representation to dealing with federal regulators. ERIC C. BOSSET is a litigator who has handled a variety of employee benefits and employment discrimination claims, including the defense of Schering Plough in ERISA stock-drop litigation. He was one of the principal trial attorneys who obtained a favorable jury verdict for John Deere after a five-week trial in the age discrimination class action Bush, et al. v. Deere & Company. The National Law Journal ranked the class action victory among the 25 most notable defense verdicts of the year. He is a graduate of Yale Law School (1987). CAROLINE M. BROWN is a litigator and appellate lawyer who has written a number of Court of Appeals and Supreme Court briefs in cases involving employee benefits. She is a graduate of Harvard Law School (1990) and a former law clerk to Justices Ruth Bader Ginsburg and Sandra Day O Connor. THOMAS L. CUBBAGE III represents clients in class actions and other high-stakes litigation, focusing on ERISA cases. He has appeared before courts throughout the country, and has represented GE and United Technologies in class actions brought under ERISA. He is a graduate of the University of Texas School of Law (1992). 5

6 JULIE M. EDMOND advises clients on employee benefits matters involving all types of pension, welfare and executive compensation plans. Her experience includes plan design and drafting, DOL and IRS audits, prohibited transaction issues, and fiduciary duty requirements, as well as ERISA litigation. She represented the Profit-Sharing Plan in the groundbreaking Foltz v U.S. News & World Report case and worked on numerous other employee benefit litigations. She is a graduate of Harvard Law School (1981). DAVID W. HALLER is a trial lawyer who handles complex commercial litigation, including mergers and acquisitions, securities, trademark, copyright, ERISA, and bankruptcy litigation. He secured the dismissal of ERISA and contractual claims against Coast-to-Coast Financial Corporation for severance pay and deferred compensation. He is a graduate of Yale Law School (1987). ROBERT P. HANEY, JR. is a litigation partner whose practice focuses on lawsuits, arbitrations and negotiations that involve the departure of senior executives and partners. He has also negotiated complex separation and consulting agreements for senior executives, and assisted them in negotiations with their new companies. He is a graduate of Harvard Law School (1983). JEFFREY G. HUVELLE is a trial lawyer whose practice emphasizes employee benefits litigation and employment litigation. He obtained favorable verdicts in 15 consecutive jury and bench trials. He has handled ERISA and benefits litigation for clients including GE, IBM, the NFL, and Verizon. He is a graduate of Columbia Law School (1973). ROBERT A. LONG is an appellate litigator who has argued 14 cases before the U. S. Supreme Court, including the important ERISA case Harris Trust and Savings Bank v. Salomon Smith Barney, Inc. (2000). He has played a substantial role in the briefing or oral argument of more than 100 cases in federal and state appellate courts. He is a graduate of Yale Law School (1985) and a former law clerk to Justice Lewis Powell. AMY N. MOORE advises corporate clients on a wide range of employee benefits and executive compensation matters. She also represents companies in contested agency proceedings involving employee benefit plans and advises clients on employee benefits issues that arise in connection with ERISA litigation and settlements. She has advised Sterling Financial Corporation, Schering- Plough, Dana Corporation, Norfolk Southern, Textron, and other major companies on litigationrelated issues. She is a graduate of the University of Virginia Law School (1983). ROBERT S. NEWMAN advises employers regarding employee benefits and executive compensation. He counsels clients in employee benefits litigation involving complex plan designs, such as cash balance and pension equity plans, and assists clients with litigation-related legislative strategies. He has advised IBM, AT&T, AK Steel, Cummins, Onan Corporation, and other clients in employee benefits litigation. Mr. Newman is a graduate of New York University School of Law (1996). RICHARD C. SHEA advises clients on employee benefits and executive compensation matters. He served as Associate Benefits Tax Counsel at the Treasury Department in the first Bush Administration, where he was responsible for federal tax legislation and regulations relating to employee benefit plans and executive compensation arrangements. Mr. Shea has extensive experience with complex plan designs, including cash balance plans, pension equity plans, leveraged ESOPs, and new funding vehicles for retiree medical benefits. He has advised IBM, AT&T, Honeywell, PricewaterhouseCoopers, Towers Perrin, Mercer, AK Steel, Cummins, Onan Corporation, Xerox, and other major employers on benefits-related litigation issues. Mr. Shea is a graduate of the University of Virginia School of Law (1983). 6

7 JOHN M. VINE is Covington s senior attorney on employee benefits and executive compensation matters. He handles advisory, regulatory, legislative and litigation matters for a variety of clients. As counsel to The ERISA Industry Committee since 1984, he has been personally involved in employee benefits issues of concern to many of the country s largest employers. He is a graduate of Harvard Law School (1969). ROBERT D. WICK represents pension plans in class actions and other high stakes ERISA litigation. He is counsel of record for Xerox in the Conkright case currently pending before the Supreme Court. He has extensive experience in representing cash balance plans and other hybrid plans and has represented clients including IBM, Avnet, AK Steel, the NFL, and Xerox in complex benefits disputes. He is a graduate of Harvard Law School (1992). THOMAS S. WILLIAMSON, JR. handles a wide variety of employment and employee benefits litigation and advisory matters. He served as Solicitor of the Labor Department from 1993 to 1996, where he was in charge of the Department s national and regional legal staff. He was responsible for overseeing all legal enforcement activities, appellate matters, and major regulatory interpretations and proposals, including issues relating to OSHA, ERISA fiduciary obligations, the Wage and Hour Division and OFCCP. He recently completed five years of service as the Chair of the Texaco Task Force appointed by a federal court to oversee compliance with the company s race discrimination settlement agreement. He is a graduate of the Law School at UC Berkeley (1974) and attended Oxford University as a Rhodes Scholar from For further information regarding our employee benefits litigation practice, please contact: TL Cubbage tcubbage@cov.com Jeffrey Huvelle jhuvelle@cov.com Robert Wick rwick@cov.com 2010 Covington & Burling LLP. All rights reserved. August