ERISA & Employee Benefits Litigation

Trusted Counsel for Challenging Times

Since ERISA's enactment in 1974, Miller & Chevalier has represented insurance companies, employers, fiduciaries, plans and participant associations in complex ERISA litigation matters. The firm's experience in ERISA litigation runs the gamut, including breach of fiduciary duty and prohibited transaction claims, ERISA class action lawsuits, subrogation and reimbursement matters, challenges to benefits denials, litigation against both the U.S. Department of Labor (DOL) and Pension Benefit Guaranty Corporation (PBGC), and litigation arising in the intersection between ERISA and the Affordable Care Act (ACA). Additionally, we have represented our clients in a wide range of agency actions, including DOL investigations and audits, and appeals before the PBGC. Our team also has significant experience in the area of federal preemption of state laws under ERISA and the Federal Employees Health Benefits Act (FEHBA), the federal law that governs the health care of federal government workers.

Our team includes former DOL staff uniquely situated to understand the enforcement perspectives of that agency, as well as lawyers who began their career dedicated to ERISA litigation and trial lawyers who have developed extensive experience in ERISA matters. The litigation team also works hand-in-hand with our Employee Benefit group, which is widely recognized as being one of the most sophisticated groups in the country. Clients hire us for our deep experience, our ability to handle the most complicated matters and our record of achievement. They choose us because we are incisive strategists and devoted advocates seeking to solve their problems.

Welfare/ACA-Related Litigation

Miller & Chevalier has a well-deserved reputation for representing clients in high-stakes ERISA litigation involving novel health-benefits issues. The firm's experience in this area dates back to 1959, when it began representing Blue Cross and Blue Shield entities. Over the past decade the firm has been involved in some of the most significant ERISA health-benefits cases in the federal Courts of Appeals and before the U.S. Supreme Court. Led by firm Chairman Anthony Shelley, we have been a key player in the implementation of the ACA (as incorporated into ERISA) for many of the nation's largest health insurers, and in defending companies in the litigation that is arising under ERISA over application of the ACA.

Fiduciary/Pension Litigation

Our team has significant experience in litigating large-scale matters in connection with ERISA-covered retirement plans, including 401(k) plans, 403(b) plans, employee stock ownership plans (ESOPs) and defined benefit plans, including defending plan sponsors, administrators and service providers in complex fiduciary and prohibited transaction litigation. The team draws on a wealth of substantive knowledge in the field (the firm's Employee Benefits department was recently recognized as the Legal 500 Employee Benefits & Executive Compensation Team of the Year), combining that substantive knowledge with extensive litigation experience involving class-action and other large-scale ERISA litigation matters.

Regulatory/Enforcement Experience

Two of our most senior ERISA attorneys have significant experience with the DOL's ERISA enforcement and regulatory programs. Tess Gee served for nearly 15 years with DOL's Office of the Solicitor, both in the National and Regional Offices, most recently as a Deputy Associate Solicitor in Washington, DC in the division responsible for ERISA litigation and advice. Tess has 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. Erin Sweeney has extensive regulatory and litigation experience. In addition to defending clients in litigation regarding fiduciary obligations, including plan investments, fee disclosures and prohibited transactions and exemptions, Erin served as DOL's Senior Benefit Law Specialist and was a primary architect of its default investment regulation proposal that impacts mutual funds, investment managers, employers and plan fiduciaries. Erin also participated in drafting the Pension Protection Act, the most significant pension legislation since the enactment of ERISA. She served as an expert witness for the United States in multiple ERISA matters. Tess and Erin not only have a deep understanding of ERISA, but also unique insight into DOL's internal operations and decision-making process at both the national and regional levels.

Appellate Litigation

Appellate advocacy is itself an area of concentration that places a premium on written and oral advocacy skills. These skills are particularly important in ERISA, one of the most complex areas of the law. Our ERISA litigators have the demonstrated experience to translate highly technical subject matter into language and concepts that a non-specialist can understand.

In addition to full-scale representation with briefing and argument in the U.S. Supreme Court and U.S. Courts of Appeals, we provide advisory litigation services, including strategic guidance at the early stages of a case by shaping important statutory issues with an eye to subsequent appellate considerations. We have also been asked to revise appellate briefs prepared by other counsel and to provide expert advice on Supreme Court or appellate strategy and procedure in important cases.

Experience in Related Substantive Areas


Miller & Chevalier was instrumental in the drafting and enactment of FEHBA, a close cousin to ERISA which governs health benefits provided to federal employees and retirees. Since FEHBA was enacted, we have been national litigation counsel for the Blue Cross and Blue Shield entities that administer and underwrite the largest FEHBA plan, known as the Service Benefit Plan. The Service Benefit Plan has nearly five million participants and is the largest health benefits plan in the world. For nearly five decades we have served as national litigation counsel for this plan, handling matters at all levels of the federal and state courts, including a landmark case in the Supreme Court in 2006, appeals in nearly every U.S. Court of Appeals and hundreds of U.S. District Court and state court matters. These representations have involved all of the most sophisticated disputes and issues that arise in the context of health benefits plans, such as preemption, federal jurisdiction, benefits controversies, subrogation disputes, Racketeering Influenced and Corrupt Organizations (RICO) allegations, class actions and multi-district litigation.


The team also has significant experience in handling matters involving the PBGC and litigation arising under Title IV of ERISA. Roughly 22,000 ongoing private-sector defined benefit pension plans are covered by Title IV's provisions, and the PBGC's actions affect both the employers who sponsor those plans, and their current and former employees. Additionally, the PBGC serves as a fiduciary trustee, holding more than $60 billion in assets that it will distribute to plan participants over time. Our team has been involved with appeals before, and litigation against, the PBGC arising out of some of the largest plan terminations in the agency's history. We offer our clients counsel on all aspects of the PBGC's operations.

Representative Engagements|View All
  • Gobeille v. Liberty Mutual Insurance Co. (136 S. Ct. 936 2016) (Represented amicus Blue Cross and Blue Shield Association in arguing that the Court should uphold the Second Circuit's decision finding Vermont's all-payer database collection law is preempted by ERISA).
  • Pa. Chiropractic Ass'n v. Indep. Hosp. Indem. Plan, Inc., 802 F.3d 926 (7th Cir. 2015) (Represented defendant health insurer in appeal before Seventh Circuit, obtaining a reversal of trial court's novel holding that plaintiffs, who are in-network healthcare providers, are ERISA "beneficiaries" entitled to ERISA's notice and appeal rights and the ability to bring suit under § 502 of ERISA).
  • Hunter v. Berkshire Hathaway, Inc., No. 4:14-cv-663-Y, 2015 U.S. Dist. LEXIS 136613 (N.D. Tex. Aug. 5, 2015) (Represent defendants in putative ERISA class action suit challenging their rights to make alterations to defined benefit and defined contribution pension plans and alleging fiduciary breaches by the defendants. The district court granted the defendants' motion to dismiss and the case is now on appeal to the Fifth Circuit). 
Government Experience
Corporate Experience
Rankings and Recognition
  • Chambers USA: ERISA Litigation (National), 2015 - 2016
  • Legal 500: Labor & Employment: ERISA Litigation (U.S.), 2012 - 2016
  • U.S. News -- Best Lawyers® "Best Law Firms": Litigation -- ERISA (National), 2013 - 2016
  • U.S. News -- Best Lawyers® "Best Law Firms": Litigation -- ERISA (District of Columbia), 2011 - 2016
  • Legal 500: Employee Benefits & Executive Compensation Team of the Year (U.S.), 2015
  • Chambers USA: Employees Benefits & Executive Compensation Team of the Year, 2015 
  • Chambers USA: Employees Benefits & Executive Compensation (National), 2015 - 2016
  • Chambers USA: Employees Benefits & Executive Compensation (District of Columbia), 2008 - 2016