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DOL Update: Compliance with the Fiduciary Rule, Other DOL Initiatives, and Recent DOL Enforcement Activities


Speaker(s): Michael N. Khalil, Theresa S. Gee
Recorded on: May. 25, 2016
PLI Program #: 180412

Michael Khalil is Vice Chair of the firm's Employee Benefits Department. Mr. Khalil's practice focuses on the litigation of claims arising under the Employee Retirement Income Security Act (ERISA) and the Patient Protection and Affordable Care Act (ACA) in federal trial and appellate courts. Mr. Khalil has represented plan sponsors, administrators, participants and service providers in complex ERISA actions, including revenue-sharing and stock-drop class actions. Mr. Khalil has particular experience in litigating breach of fiduciary duty claims and plan termination cases against the Pension Benefit Guaranty Corporation under Title IV of ERISA. Beyond his ERISA litigation experience, Mr. Khalil has significant experience advising clients on civil litigation against the U.S. government, including Freedom of Information Act (FOIA) actions and discovery disputes. Mr. Khalil also advises employers and insurers on a wide variety of issues related to the implementation of the ACA.

Mr. Khalil is a frequent author and speaker on a variety of topics in his practice areas, with particular emphasis on pension plan termination and the legal issues arising from the implementation of the ACA. Mr. Khalil is also a member of the firm's Diversity Committee.

Prior to joining Miller & Chevalier, Mr. Khalil was an Associate in the litigation practice of Sutherland Asbill & Brennan, LLP, where he worked on a broad range of commercial litigation matters.

Representative Engagements

  • Pa. Chiropractic Ass'n v. Independence Hosp. Indem. Plan, Inc. (7th Cir. No. 14-2322) (Part of legal team representing defendant health insurer in appeal before Seventh Circuit, obtaining a reversal of trial court's novel holding that an in-network healthcare provider qualified as an ERISA beneficiary with standing to sue under § 502 of ERISA. See Pa. Chiropractic Ass'n v. Indep. Hosp. Indem. Plan, Inc., 802 F.3d 926 (7th Cir. 2015)).
  • DB Healthcare, LLC, et al. v. Blue Cross Blue Shield of Arizona, appeal pending (9th Cir. 14-16518) (Part of legal team representing defendant health insurer in lawsuit filed by various healthcare providers alleging claims under ERISA and the ACA. The district court granted the defendant's motion to dismiss, see DB Healthcare, LLC v. Blue Cross Blue Shield of Ariz. Inc., 2014 U.S. Dist. LEXIS 93170 (D. Ariz. July 8, 2014), and the case is now on appeal before the Ninth Circuit).
  • Black, et al. v. PBGC, et al. (E.D. Mich. No. 2:09-cv-13616) (Ongoing representation of retiree association in lawsuit against the PBGC, alleging that the PBGC's termination of the Delphi Salaried Plan in 2009 violated Title IV of ERISA).
  • Lewis v. PBGC, Case 14-3838 (D.D.C. No. 1:15-cv-01328 ) (Ongoing representation of retired Delta Airlines pilots against the PBGC, challenging the PBGC actions as Plan trustee).
  • In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig. (2d Cir. Case No. 12-4671) (Part of legal team representing large group of health insurers in appeal of district court's Rule 23(b)(2) class certification and settlement of antitrust class action, with our objection highlighting specific concerns of settlement to insurance companies in light of their coverage obligations under the ACA).
  • Blue Cross Blue Shield of Michigan v. Hi-Lex Controls, Inc. (Supreme Court Case No. 14-168) (Part of legal team representing various trade organizations arguing that the Court should grant certiorari in the case to address uncertainty created by the Sixth Circuit's decision for liability for third-party administrators of ERISA plans).

Rankings and Recognition
  • Washington, D.C. Super Lawyers®: Rising Star, Employee Benefits, 2014 - 2015

Bar Admissions
  • District of Columbia
  • Maryland

Court Admissions
  • United States Supreme Court
  • United States Court of Appeals for the District of Columbia Circuit
  • United States Court of Appeals for the Second Circuit
  • United States Court of Appeals for the Sixth Circuit
  • United States Court of Appeals for the Seventh Circuit
  • United States Court of Appeals for the Ninth Circuit
  • United States District Court for the District of Columbia
  • United States District Court for the Eastern District of Michigan

Education

  • J.D., The University of Michigan Law School, cum laude, 2005
  • B.A., Gettysburg College, 1997

Practice Areas


Tess Gee practices in the area of employee benefits with a specific focus on the Employee Retirement Income Security Act of 1974, as amended (ERISA). She focuses on both litigation and counseling in connection with fiduciary responsibilities under ERISA. Tess served for nearly 15 years at the U.S. Department of Labor (DOL) in the Office of the Solicitor, most recently as a Deputy Associate Solicitor in the division responsible for ERISA litigation and advice. While with DOL, she represented the government in investigations and cases involving breaches of fiduciary duty and prohibited transactions in connection with the value of company stock, corporate fraud, excessive fees, health plans and plan investments, as well as funding and other issues under Title IV of ERISA.

Since leaving the government, Tess has utilized her extensive past experience to assist clients in responding to DOL fiduciary investigations and inquiries and advising on plan design, fiduciary processes, disclosures and compliance with ERISA's prohibited transaction provisions. She has successfully defended major corporations, directors and officers in class actions alleging fiduciary breaches, obtaining dismissal, nonmonetary settlement and favorable summary judgment rulings in various matters.

Prior to joining Miller & Chevalier, Tess advised clients under DOL investigation and was an ERISA class action litigator at a global law firm with offices in Washington, DC.

Representative Engagements

  • Assisted clients in responding to DOL fiduciary investigations and inquiries.
  • Counseled financial institutions, plan sponsors and other clients on fiduciary structure and processes, disclosures and compliance with ERISA's prohibited transaction provisions.
  • Successfully defended major corporations, directors and officers in ERISA class actions in connection with employer stock funds offered by 401(k) plans, obtaining favorable rulings on dismissal and summary judgment and achieving nonmonetary settlements in separate matters.
  • Obtained no-action letters at conclusion of DOL fiduciary investigations.
  • Defended clients in arbitration, litigation and class actions alleging ERISA fiduciary breaches and prohibited transactions in connection with administrative expenses, investment fees charged to plans and other fiduciary issues.

Government Experience
  • Deputy Associate Solicitor, Office of the Solicitor, U.S. Department of Labor, 2005 - 2008
  • Senior Trial Attorney, Office of the Solicitor, U.S. Department of Labor, 2004 - 2005
  • ERISA Counsel, Regional Office of the Solicitor, U.S. Department of Labor, 2000 - 2004
  • ERISA Trial Attorney, Regional Office of the Solicitor, U.S. Department of Labor, 1994 - 2000

Professional and Community Involvement
  • Co-Chair, Fiduciary Responsibility, American Bar Association Labor and Employment Section, Employee Benefits Committee
  • Former Co-Chair, Civil Practice and Procedure, American Bar Association Labor and Employment Section, Employee Benefits Committee
  • Board Member, Gary S. Tell Scholarship Foundation

Bar Admissions
  • District of Columbia
  • California

Court Admissions
  • United States Supreme Court
  • United States Court of Appeals for the District of Columbia and the Second, Seventh and Ninth Circuits
  • United States District Court for the Northern District of California
  • United States District Court for the Eastern District of California
  • United States District Court for the Central District of California
  • United States District Court for the Southern District of California
  • United States District Court for the District of Columbia

Education
  • J.D., University of California, Hastings College of the Law, 1988
  • A.B., University of California at Berkeley, 1982