Presenting a live 90-minute webinar with interactive Q&A Retiree Health Benefits Claims After M&G Polymers USA v. Tackett Navigating Differing Court Applications of Tackett, Minimizing Liability for Modification or Termination of Retiree Benefits TUESDAY, APRIL 5, 2016 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Russell L. Hirschhorn, Partner, Proskauer Rose , New York Brian D. Netter, Partner, Mayer Brown , Washington, D.C. Nancy G. Ross, Partner, Mayer Brown , Chicago The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Retiree Health Benefits Claims After M&G Polymers USA v. Tackett Russell L. Hirschhorn Nancy G. Ross Brian D. Netter Proskauer Rose LLP Mayer Brown LLP Mayer Brown LLP Eleven Times Square 71 S. Wacker Drive 1999 K Street, N.W. New York, NY 10036 Chicago, IL 60606 Washington, D.C. 20006 P: 212.969.3286 P: 312.701.8788 P: 202.263.3339 rhirschhorn@proskauer.com nross@mayerbrown.com bnetter@mayerbrown.com
Russell L Hirschhorn Partner, Proskauer Rose LLP Russell Hirschhorn is a partner in the ERISA Practice Center and the Labor & Employment Law Department, where he focuses on complex ERISA litigation and advises and represents employers, fiduciaries, trustees and plan service providers on ERISA benefit and fiduciary issues. For more than a dozen years, Russell has represented clients in all phases of litigation, arbitration and mediation. His representations run the gamut from complex class action litigation to single plaintiff claims relating to: • ERISA “stock - drop” suits • ERISA preemption of state law claims • ERISA’s fiduciary duty and prohibited • Cash balance plan conversions Russell L Hirschhorn transaction provisions • Plan amendments or terminations Partner • Participant and beneficiary claims for benefits • Retiree benefits • Interference with the receipt of benefits • t: 212.969.3286 Withdrawal liability rhirschhorn@proskauer.com and discrimination in benefits • Employer contributions to multiemployer funds • Plan investment losses When he is not in the courtroom, Russell is active in counseling benefit plan clients on a host of compliance and federal and state government agency enforcement matters, including complex and lengthy investigations and audits by the U.S. Departments of Justice and Labor. Russell serves as legal counsel to the boards of trustees of several multiemployer pension and welfare benefit plans. He also represents a wide variety of clients across various industries, including aerospace, biotechnology, financial services, oil and gas, automotive, and publishing. Russell is a prolific writer on cutting-edge ERISA litigation issues, and often speaks on topics related to his publications at conferences sponsored by the American Bar Association, International Foundation of Employee Benefit Plans, the New York State and City Bar Associations, and others. He is the co-editor of Proskauer’s ERISA Practice Center Blog and ERISA Litigation Newsletter, as well as a Chapter Editor of the Cumulative Supplements to Employee Benefits Law (BNA Second Edition 2000). Russell has been recognized on several occasions for his commitment to pro bono work, and has been the recipient of several honors. In addition, Russell has served as a Special Professor of Law at Hofstra University School of Law where he taught an introductory class to employee benefits law. 6
Nancy Ross Partner, Mayer Brown LLP NANCY G. ROSS is a Partner in the Chicago office of Mayer Brown LLP where she is a member of the Employment Law and ERISA Litigation practice group. She focuses her practice primarily on employee benefits class action litigation and counseling under ERISA. Her experience includes representation of pension plans, fiduciaries, Nancy G. Ross ESOPs, trustees and employers concerning administration of plan Partner assets and fiduciary responsibilities. She has extensive experience in t: 312.701.8788 nross@mayerbrown.com counseling employers in matters concerning defined benefit and defined contribution plan administration, as well as assisting employers in reducing their retiree health benefits liabilities. Nancy is a member of the Policy Board of Directors Advisory Council for the American Benefits Council, where she assists in promoting employers’ issues regarding employee benefits, and is a Board Member of the Chicago Bar Foundation and Vice-Chair of the Grants Committee. She has been recognized by numerous organizations including Chambers, Legal 500 and Illinois Super Lawyers as one of the nation’s top ERISA lawyers, and was named ERISA Litigator of the Year among Chicago attorneys in 2014 by U.S. News & World Report . 7
Brian Netter Partner, Mayer Brown LLP Brian Netter is a partner in the Washington DC office of Mayer Brown’s Litigation & Dispute Resolution practice, and a co- leader of the firm’s Supreme Court & Appellate group. Brian’s innovative work has been recognized in The National Law Journal’s “Appellate Hot List” on four separate occasions, and he has been recognized by Brian D. Netter The National Law Journal and by Washington DC Super Lawyers as an emerging Partner star in appellate litigation. t: 202.263.3339 bnetter@mayerbrown.com Brian’s practice consists of briefing and arguing high profile and legally complex cases, in trial and appellate courts. His experience covers a broad range of substantive areas, and he frequently litigates cases involving administrative law, constitutional law, and ERISA. Earlier in his career, Brian served as a law clerk to Associate Justice Stephen Breyer on the US Supreme Court and to Judge Judith W. Rogers on the US Court of Appeals for the DC Circuit. On ERISA questions, Brian litigates class-action disputes and advises clients on issues prompting such litigation, particularly as relates to ERISA's fiduciary standards. He is a frequent commentator on the Supreme Court’s ERISA docket. Prior to his career as a lawyer, Brian earned undergraduate and graduate degrees in Industrial & Operations Engineering. 8
Today’s Agenda • Yard-Man • Supreme Court’s decision in M&G Polymers v. Tackett • Tackett on remand in the Sixth Circuit • Post- Tackett Decisions • Managing Changes to Retiree Health Benefits 9
Yard-Man • Unique among the circuits, for thirty years the Sixth Circuit had applied what is called the Yard-Man presumption to collectively bargained retiree health benefits. • Yard-Man presumed that retiree health benefits were vested absent clear contractual language to the contrary. • Sixth Circuit has been the forum of choice for plaintiffs. • Led to battles over venue and attempts by employers to file declaratory actions in other forums. 10
M&G Polymers v. Tackett Background • M&G and USW bargained to modify H&W plans, with post- agreement participants to contribute to costs of coverage. • M&G applied the cost-sharing agreement to existing retirees. • Retirees and USW brought suit, asserting that earlier, expired CBAs entitled existing retirees at the Apple Grove plant to lifetime, contribution-free benefits. • Expired CBAs did not contain provisions that specifically addressed the duration of the provisions governing retiree benefits. 11
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