Practice Areas & Industries: Jorden Burt LLP

Practice/Industry Group Overview

JORDEN BURT's ERISA & Tax Practice Team has represented financial services clients in complex arbitration, litigation and mediation for more than 25 years. Our extensive knowledge of our financial services clients' products and business operations provides our clients with a unique advantage in litigation where such knowledge is of critical importance to a successful result. The Firm also regularly provides ERISA and tax counseling in connection with our clients' products and services. We also have regularly represented our clients before the Department of Labor and the Internal Revenue Service. Our clients in these areas include many of the leading financial services companies in the United States in tax-related matters, ERISA litigation, and employment discrimination disputes.

Services Available

ERISA

Jorden Burt's ERISA & Tax Practice Team is comprised of 29 lawyers, including 14 partners, and is recognized as one of the leading practices of its kind in the United States. Our ERISA practice is almost entirely devoted to the representation of insurers, financial institutions, and employee benefit plan sponsors in the areas of complex litigation, financial product development, regulatory compliance, and regulatory monitoring and advocacy.

As one part of our work with our clients, the Firm has developed an extensive ERISA litigation and counseling practice. Most of our litigation work in this area has been on the defense side, representing insurers and financial institutions who are alleged to have violated ERISA (and/or other federal and state laws) in connection with the management of pension or welfare plan funds, their administration of pension and welfare benefit claims, and/or their provision of trust, custodial, actuarial, accounting and other services to plans. Many of these cases are putative class actions drawing upon our considerable experience and expertise in defending class actions. We have also had considerable experience in representing clients in enforcement proceedings initiated by the Department of Labor and the Pension Benefit Guaranty Corporation.

We act as a primary national counsel for a number of financial institution and insurance company clients in the area of ERISA litigation involving both health and retirement plans. In the health and welfare area, we are representing clients in the major MDL (multi-district litigation) class litigation against major managed care providers. We are also currently representing 401(k) service providers in nationwide class action litigation involving their receipt of revenue sharing fees, as well as life insurance clients in class action litigation involving IRC§412(i) plans. On behalf of plan sponsors, we have won cases involving such cutting edge issues before Federal circuit and district courts as (i) the "make whole" doctrine is inapplicable to a health insurer's or health plan's enforcement of a plan reimbursement provision where a plan participant has violated a plan requirement that he cooperate with the plan in seeking to recover from third-party tortfeasors; (ii) the use of the "gender rule" for purposes of coordinating benefits is enforceable under ERISA; (iii) ERISA does not preempt state law enforcement of a plan reimbursement provision; and (iv) death benefits resulting from autoerotic asphyxiation are not covered under an accidental death policy provision excluding benefits for death resulting from the intentional inflection of bodily injury. On the administrative side, we have secured prohibited transaction exemptions from the DOL including exemptions for "synthetic GICs."

In Fenton v. John Hancock Mut. Life Ins. Co., 400 F.3d 83 (1st Cir. 2005), we secured a decision from the First Circuit reversing and remanding a lower court holding which interpreted a plan as providing enhanced early retirement benefits from employees whose services were terminated other than by retirement prior to age 50.

In the retirement plan area, we prevailed on a motion to dismiss for a 401(k) plan directed trustee in ERISA litigation similar to the Enron litigation (In re Dynegy, Inc. ERISA Litig., 309 F. Supp.2d (S.D. Tex. 2004)), where numerous 401(k) plan participants sued for damages caused by losses in the value of Dynegy stock held in their accounts, caused by the discovery of purported accounting and other improprieties by the company. And we successfully represented 16 state guaranty funds in litigation in federal court in California relating to claims by holders of over $200 million in guaranteed investment contracts against the guaranty funds for alleged breaches of ERISA fiduciary duties in connection with the Rehabilitation Plan for Executive Life approved by the California state courts.

In addition to our day-to-day work in this area, Jorden Burt partners regularly speak at conferences and seminars. Three of our partners - James F. Jorden, Waldemar J. Pflepsen and Stephen H. Goldberg - have co-authored the Handbook on ERISA Litigation (Wolters Kluwer Law & Business/Aspen Publishers, 3d ed. 2007) frequently cited by the courts in ERISA decisions. We have also acted as ERISA counsel to three major trade associations, the American Council of Life Insurers, the National Organization of Life and Health Insurance Guaranty Associations, and the Association of Health Insurance Plans. In that capacity, we have prepared amicus briefs on their behalf in cases before the U.S. Supreme Court and Federal Circuit Courts of Appeal, including Harris Trust and Mertens. In addition, we acted as lead counsel for Great-West before the Supreme Court in Knudson v. Great-West Life & Annuity Insurance Co., 534 U.S. 204 (2002), a case clarifying the limited circumstances in which monetary relief is available under ERISA for breach of fiduciary duty claims.

ERISA CASE HIGHLIGHTS

Significant ERISA representations include:

• Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th Cir. 2006) (en banc)
• John Hancock Mutual Life Insurance Co. (Fenton v.), 400 F.3d (1st Cir. 2005)
• CIGNA/CG Trust Company (In re Dynegy, Inc. ERISA Litig.), 309 F. Supp. 2d 861 (S.D. Tex. 2004)
• Great-West Life & Annuity Insurance Co. (DaVita Inc. v.), 03-K-130, 2003 (D. Colo. 2003)
• Great-West Life & Annuity Insurance Co. (Knudson v.), 534 U.S. 204 (2002)
• Unicare Life & Health Insurance Co. (Cooper Adelstein v.), 2002 WL 87035 (11th Cir. 2002)
• Hamilton v. AIG Life Ins. Co., 182 F. Supp. 2d 39 (D.D.C. 2002)
• Alta Life & Health Insurance Co., et al. (Gilbert v.), 276 F.3d 1292 (11th Cir. 2001)
• Aetna (Eitan Sadeh v.), CA-95-3674RSWL (C.D. Cal.)
• Hartford Life Insurance (Windsor Securities v.), 986 F.2d 655 (3d Cir. 1993)
• CIGNA (Fechter v.), 800 F. Supp. 182 (E.D. Pa. 1992)
• CIGNA (Oak Industries v.), 14 E.B.C. 2644 (N.D. Ill. 1991)
• CIGNA (Ziegler v.), 916 F.2d 548 (9th Cir. 1990)
• Massachusetts Mutual Life Insurance Company (Coleman Clinic v.), 698 F. Supp. 740 (C.D. Ill. 1988)
• Aetna (Rochester Radiology v.), 616 F. Supp. 985 (W.D.N.Y. 1985)

TAX

JORDEN BURT's tax professionals counsel on a broad spectrum of tax and tax-related matters encountered by individuals and businesses in a wide range of industries, including insurance, mutual funds and other financial services, real estate development and investment, manufacturing, and wholesale and retail business. Leading the Firm's tax practice is a nationally recognized partner with extensive Internal Revenue Service experience. Before leaving for private practice, he was principal technical adviser in the Office of the Commissioner of the Internal Revenue Service.

The Firm's tax lawyers combine a thorough understanding of the legal issues arising in these situations with their extensive government experience. They take a practical business approach to analyzing each client's situation and in counseling on the compliance issues generally associated with this practice. Our attorneys deal with complex tax issues for the financial services industry clients including design of insurance contracts, tax accounting for investment products, formation and reorganization of investment companies, and issues relating to litigation settlement.