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Applying ERISA Fiduciary Rules to Health Plans, Services and Products 2019


Speaker(s): Benjamin J. Conley, Brian J. Lamb, Chantel Sheaks, Darren Cohen, Erin Turley, Howard Pianko, Jennifer A. Kraft, Karen L. Handorf, Kathleen M. Emberger, Kirstin Poirier-Whitley, Laura Miller Andrew, Roberta Casper Watson, Sruthi Mylavarapu, CFA
Recorded on: Jan. 15, 2019
PLI Program #: 248468

Brian J. Lamb is a partner at Thompson Hine LLP in Cleveland, Ohio.  His practice focuses on representing companies and their directors and officers in ERISA litigation, securities and shareholder litigation, fiduciary disputes, and other complex business litigation.  His ERISA litigation experience includes defending claims relating to employer securities, plan terminations, withdrawal liability, controlled group liability, and denial of benefits.  His 2018 articles include topics such as board of director liability under ERISA, fiduciary aspects of bundled fee arrangements with service providers, and pharmacy benefit manager litigation.

Brian is the practice group leader of the firm's business litigation group, which has more than 80 lawyers in seven offices.


Darren Cohen is the Regional Director of the U.S. Department of Labor’s New York Regional Office of the Employee Benefits Security Administration (EBSA). He is responsible for overseeing the Regional Office’s civil enforcement program, which obtains compliance with the fiduciary, reporting, and disclosure provisions of Title I of ERISA.  He is also responsible for the Office’s criminal enforcement program, which is handled in conjunction with the U.S. Attorney’s Offices and state and local prosecutors. Prior to joining EBSA, Mr. Cohen was the Deputy Regional Solicitor and ERISA Counsel in the New York Office of the U.S. Department of Labor, Office of the Solicitor. Prior to joining the U.S. Department of Labor, Mr. Cohen worked at two New York law firms and clerked for the Honorable Cecilia M. Altonaga, U.S. District Judge for the Southern District of Florida. Mr. Cohen received his J.D. from Yale Law School and his B.A. from Columbia University.


Erin Turley is a partner at the international law firm McDermott Will & Emery LLP, specializing in issues pertaining to Employee Retirement Income Security Act of 1974 (ERISA) and employee stock ownership plan (ESOP) compliance.

Nationally known for her leadership and technical expertise, Ms. Turley has been a member of the McDermott Will & Emery Management Committee since early 2018. In recognition of her outstanding contributions to the field of employee benefits, she also was inducted as a Fellow of the American College of Employee Benefits Counsel (ACEBC) in 2017.

Ms. Turley’s ESOP practice focuses on the design, implementation, maintenance, and termination of ESOPs. She has represented companies, inside ESOP trustees, and outside ESOP trustees in buy-side and sell-side transactions, as well as in ongoing ESOP compliance matters. Ms. Turley has been involved in hundreds of transactions, including leveraged buyouts, mergers, acquisitions, and the structuring and financing of ESOPs using private equity. She has extensive experience representing lenders in designing and negotiating credit facilities specifically tailored to the needs of ESOP-owned companies.

Ms. Turley regularly writes and speaks on topics she encounters in her practice, including issues raised in connection with corporate mergers, acquisitions, divestitures, ESOP compliance, ERISA’s regulatory framework, and health and welfare benefit plan arrangements. She is the co-author of Bloomberg Bureau of National Affairs (BNA) Tax Management Portfolio 354 – ESOPs and BNA Corporate Practice Portfolio 62 – ESOPs in Corporate Transactions.


Jennifer Kraft is a partner in Seyfarth’s Employee Benefits & Executive Compensation Department in Chicago and is Co-Chair of the Firm’s Welfare Benefits Practice Group. Jennifer assists many Fortune 500 companies with all aspects of their employee benefits plans, including design and ongoing administration of their qualified retirement plans (401(k) plans, traditional defined benefit and cash balance plans) and health and welfare plans.

Drawing from both her benefits and prior litigation experience, Jennifer has advised a number of clients on fiduciary issues, including claims administration, vendor negotiations, fiduciary training and general fiduciary governance structure, process and documentation. She has also counseled clients on cost-reducing design measures such as implementing high deductible health plans, wellness initiatives and transitioning to retiree medical exchange approaches. Jennifer has counseled and trained clients extensively on HIPAA privacy compliance and helped with data breach responses and implementing general compliance plans.

Jennifer is very active in civic and pro bono activities.  She is a former recipient of the Volunteer of the Year award from CARPLS (the Coordinated Advice and Referral Program for Legal Services).  She is a former Chair of the Chicago Bar Association Alliance for Women and co-founded the group’s Mentoring Circles Program.

Jennifer has been quoted on employee benefits issues in publications as diverse as CNN Money, Yahoo! Finance, National Law Journal, Law360, Chicago Daily Law Bulletin, Business Insurance, Corporate Counsel, Benefits Pro, Modern Healthcare and Scrip.


Karen L. Handorf is a Partner at Cohen Milstein and Chair of the firm’s Employee Benefits (ERISA) Practice Group. She joined the firm in 2007 following a distinguished career in government service litigating ERISA cases in federal and district courts. In her role as head of the Employee Benefits Practice, Ms. Handorf represents the interests of employees, retirees, plan participants and beneficiaries in ERISA cases in the district courts and on appeal.

Ms. Handorf is involved in litigation and appeals involving a broad range of employee benefits issues. She currently leads a team of litigators in a series of lawsuits alleging that health care systems wrongfully claim their pension benefit plans are exempt from ERISA’s protection because they are church plans.  Ms. Handorf is also litigating issues involving the selection of proprietary funds by 401(k) plans sponsored by financial institutions and imprudent and non-diversified investments by defined benefit plans.  She also represents Oregon officials in a lawsuit alleging that a provision of the state’s OregonSaves retirement program for private-sector employees is preempted by ERISA.

Prior to joining Cohen Milstein, Ms. Handorf was an attorney for the U.S. Department of Labor (DOL), where she litigated ERISA cases in federal and district courts for 25 years. While at the DOL, she played a major role in formulating the Government’s position on ERISA issues expressed in amicus briefs filed by the Solicitor General in the United States Supreme Court.

Ms. Handorf is a recipient of the Department of Labor Distinguished Career Service Award and received Exceptional Achievement Awards for her work on ERISA 401(k) plan remedies, the amicus brief in the Enron litigation, retiree health care, the amicus program in general, the appellate brief in the Department’s Tower litigation, termination annuities litigation and multiple employer welfare arrangement (MEWAs) litigation.

Ms. Handorf has been recognized for her expertise by her colleagues in the ERISA bar, who named her a Fellow of the American College of Employee Benefits Counsel. She is a frequent speaker on ERISA issues for the ABA, various Bar associations and at private seminars. She serves as plaintiffs' co-chair of preemption subcommittee of the Employee Benefits Committee of the ABA's Labor Section. In 2016, 2017 and 2018, she was named to the Best Lawyers in America.

Ms. Handorf attended the University of Wisconsin-River Falls, where she received a B.S. in Speech and History, and earned her law degree from the University of Wisconsin Law School.


Kirstin Poirier-Whitley has more than 20 years of experience counseling tax-exempt employers (including hospitals, universities, and local governments) and for-profit employers on tax and fiduciary issues related to the design and administration of employee benefits for employees, executives, and retirees. She provides day-to-day counseling, addresses the benefits-related liability and transition issues that arise in corporate transactions, and helps clients favorably settle compliance issues with government agencies.

Kirstin has extensive experience advising on the myriad regulatory requirements (e.g., Affordable Care Act, HIPAA privacy) impacting clients' health and welfare plans and the tax rules impacting related funding vehicles (e.g., 401(h) accounts, VEBAs). She regularly negotiates health plan service agreements with third-party administrators and network providers and counsels on developing areas such as telemedicine and the design of consumer driven health care plans. Kirstin has extensive experience advising plan sponsors and fiduciary committees on tax and fiduciary issues related to retirement plans (e.g., cash balance, pension, 401(k), 403(b), and 457(b) plans), including advising on emerging issues such as the DOL's new fiduciary rule.

She also advises on executive deferred compensation plans for tax-exempt and for-profit employers (e.g.,457(f) and 409A issues) and on all manner of fringe benefits (e.g., educational assistance, employer-provided vehicles, wellness incentives). Additionally, she counsels clients on payroll tax matters, including FICA taxation of nonqualified deferred compensation arrangements. Kirstin recently guided a client to a favorable result in a payroll tax audit, impacting its compensation and benefit practices with regard to more than 100,000 employees. Furthermore, she has significant experience advising governmental clients on state law issues, including the vested rights doctrine.

EXPERIENCE HIGHLIGHTS

Stanford Health Care enters into accountable care services arrangement with Silicon Valley technology company

City of Hope forms precision medicine alliance with TGen

Astellas sells U.S. manufacturing subsidiary to Avara

EDUCATION

University of California, Los Angeles (J.D. 1994; Order of the Coif; Moot Court Honors Program; B.A. 1991; Phi Beta Kappa)

BAR ADMISSIONS

California


Laura Andrew is a partner and Chair of the Health Care Practice Group, and member of the Executive Compensation and Employee Benefits Practice Group, with the Atlanta and Jacksonville offices of Smith, Gambrell & Russell, LLP, specializing in health care and employee benefits.

She concentrates her practice in health and welfare benefit matters, including compliance with ERISA, HIPAA, the ACA, federal and state health care anti-fraud laws, and other federal laws impacting health care matters. She represents clients before the DOL, IRS, CMS and state agencies related to such matters.

Laura graduated, with distinction, from Emory University School of Law. She is a member of the American Health Lawyers Association, the American Bar Association, Health and Joint Committee on Employee Benefits Sections, and the Society for Human Resource Management. She is admitted to the State Bars of Georgia and Florida.

Laura has been recognized by Chambers USA as a leading health care attorney. She is a frequent speaker on health and welfare benefit related topics, and has also written extensively on these topics.

She is actively involved with the United Way of Northeast Florida, serving on its Community Impact Council.


Practice Area:

Employee Benefits

Plan Governance

Fiduciary Advisory Services

Executive Compensation

International Benefits

Howard Pianko is the head of Seyfarth Shaw’s New York benefits practice and the national chair of its Fiduciary Advisory Services practice group. During his more than thirty-five years of experience in employee benefits law and executive compensation, he has counseled both domestic and international clients on matters running the full benefits gamut. His current practice focuses extensively on fiduciary and plan governance matters, executive compensation (including both domestic and cross-border equity and incentive plans) as well as benefit and employment considerations in M&A transactions, including post-transaction implementation and restructuring.

He is a Charter Fellow in the American College of Employee Benefits Counsel and a founding member of the International Pension and Employee Benefits Lawyers Association. He has been recognized for his professional expertise by, among others, Chambers, Legal 500 and Best Lawyers in America and also designated as a BTI Client Service All-Star. He co-chairs the basic ERISA fiduciary program as well as the more advanced PLI Pension Investment Program intended for more advanced practitioners in this area.


Roberta Watson is a partner in the Tampa office of The Wagner Law Group and is the leader of the firm’s health and welfare practice.  Her practice includes the broad range of ERISA and employee benefits, but includes a particularly strong focus on health and welfare benefits, including COBRA, HIPAA, and the Affordable Care Act, and on the fiduciary issues related to health and welfare plans. 

Roberta has been providing extensive advice to clients with respect to health plans since the passage of COBRA in 1986.  She is a recognized expert in COBRA, HIPAA, and the Affordable Care Act.  Her health plan expertise and experience also include coordination of benefits, the Medicare Secondary Payor rules, the Americans with Disabilities Act rules that affect health plans, VEBAs and other Section 419 plans, and various fiduciary topics regarding the administration of health plans. 

Roberta is a graduate of the University of Idaho and Harvard Law School.  Prior to joining the Wagner Law Group, she was with a full-service firm in Tampa, Florida for 28 years.

For nearly 30 years, she has been a frequent speaker on all these topics (and others), and has spoken for many organizations, most frequently for ALI-CLE (formerly called ALI-ABA).  Since 1995, The Best Lawyers in America has listed Roberta in their annual publication and voted her Tampa Bay Lawyer of the Year (Employee Benefits Law) for 2012 and 2019, and she has been listed in Florida Super Lawyers most years from 2006 to present.  Roberta has received an AV rating from Martindale Hubbell, and has been listed in several Who’s Who publications.  She is actively involved in and a past chair of the American Bar Association Tax Section’s Employee Benefits Committee, the ABA’s Joint Committee on Employee Benefits (JCEB), and the ABA Health Law Section’s Employee Benefits Interest Group.  Roberta is a Charter Fellow of the American College of Employee Benefits counsel, and is a member of several other employee benefit organizations.


Sruthi Mylavarapu serves as a financial analyst for Newport Trust Company. Her responsibilities include monitoring client companies, preparing financial reviews, and performing other analyses for the finance group related to fiduciary decision-making matters. Ms. Mylavarapu previously served in a similar role with Evercore Trust Company, N.A., prior to the acquisition of Evercore Trust’s institutional trustee and independent fiduciary business by Newport Trust in 2017. Prior to joining the Evercore Trust team, Ms. Mylavarapu was an economic consultant at Charles River Associates in their New York office.

Ms. Mylavarapu earned the right to use the Chartered Financial Analyst designation in 2014 and is a member of the CFA Institute and the CFA Society of New York. She earned a B.Sc. in Finance and International Business from the Stern School of Business at New York University.


Chantel has over 20 years of experience in the area of employee benefits including health and welfare plans, and works with clients on ACA strategy, compliance and implementation in addition to general compliance and strategy on other aspects of health and welfare plans. She also has experience in flexible benefits, qualified retirement and savings programs, and reporting and disclosure for employee benefit plans.  Her consulting services include design, implementation, merger and acquisition due diligence, and regulatory compliance.

Chantel is an attorney and has held a variety of positions including fund director/general counsel for a national multiemployer health fund, government relations consultant, and partner at a major, international law firm.  She speaks regularly at industry conferences and is an adjunct law professor. 


Kathleen M. Emberger’s practice focuses on executive compensation and benefits matters, including employee equity and equity-based compensation and incentive arrangements.

She regularly advises on annual and periodic disclosure obligations related to executive compensation and compensation arrangements, including in connection with the preparation of compensation-related annual proxy disclosure, as well as on employment and executive compensation-related aspects of public and private merger and acquisition transactions and investments and acquisitions by private equity firms.

Kathleen joined the firm in 1998 and became counsel in 2007.

HONORS AND DISTINCTIONS
The Legal 500 U.S.
Employee Benefits and Executive Compensation

Super Lawyers
Employee Benefits and Executive Compensation

EDUCATION
Duke University School of Law
J.D./LL.M.
cum laude
1998


University of Pennsylvania
B.A.
magna cum laude
1995

 


Mr. Conley is an attorney in the Chicago office of Seyfarth Shaw LLP.  He focuses his practice on employee benefit plans. Mr. Conley has experience counseling clients on qualified retirement plans, health and welfare plans, and executive compensation.

Mr. Conley regularly advises clients on defined benefit and defined contribution plan compliance, including corrections for plan operational errors. He assists clients in drafting plan documents, plan amendments and participant communications. He also advises clients on health & welfare plan compliance, including medical and dental plans, cafeteria plans, flexible spending accounts and dependent care spending accounts. Mr. Conley counsels clients on plan design decisions relating to COBRA, HIPAA privacy regulations and health care reform legislation.

Mr. Conley serves on the Advisory Board of the Health Care Reform Center & Policy Institute, a newly formed national “think tank” made up of the nation’s leading lawyers, consultants, government representatives and state insurance agents to influence the development of new rules and regulations under Health Care Reform.  Mr. Conley is a member of the firm's Health Care Reform Team. This cross-departmental team of lawyers was formed to focus on how health care reform will affect our clients. Mr. Conley started closely following health care reform well before it was passed into law. He regularly consults with governmental agencies on health care reform developments and has submitted comments on health care reform interim regulations on behalf of clients.  Mr. Conley has presented extensively on health care reform and what it means for businesses, including leading the Healthcare Reform Certification Program offered by the Employer Healthcare Congress.

Mr. Conley also serves on the Steering Committee for the Worldwide Employee Benefits Network - Chicago Western Suburbs.  He has written articles concerning health care reform legislation, employer wellness programs, fiduciary responsibilities, claims review procedures and retiree medical benefits.  Prior to joining Seyfarth, Mr. Conley was a lead articles editor for the Washington & Lee University Law Review.

Education

  • J.D., Washington and Lee University (2008) 
    Order of the Coif
    Lead Articles Editor, Washington & Lee University Law Review; Winner of the 2007 Robert J. Grey, Jr. Negotiations Competition; ABA Regional Negotiations Competition Finalist
  • B.A., Miami University (2005)

Admissions

  • Illinois