Theresa S. Gee, Anthony F. Shelley, and Dawn E. Murphy-Johnson Release Authoritative Reference Guide to Department of Labor's ERISA Enforcement
Washington, DC, Month August 2, 2022 – Theresa S. (Tess) Gee, Employee Benefits Member of Miller & Chevalier, authored ERISA: Department of Labor Investigations and Litigation, the 2022 edition publishing this summer by Practising Law Institute (PLI), a nonprofit learning organization chartered by the Regents of the University of the State of New York. Fellow Miller & Chevalier attorneys Anthony F. Shelley and Dawn E. Murphy-Johnson are contributing authors to the new edition. The authors are grateful to the team at Miller & Chevalier – Christine Ciambella, Sarah Barney, Cody Marden, Lesley E. Semones, Ahmond Brooks, and Katharine V. Tafuri – for their invaluable assistance and to Lori Wood and the publishing team at PLI for the publication of this edition.
The 2022 edition continues to serve as both a reference guide to the Department of Labor's (DOL) regulations and informal guidance and as a resource for DOL's views on Employee Retirement Income Security Act (ERISA) fiduciary responsibilities and prohibited transactions, comprehensively detailing DOL's key practices and positions. Reflecting critical changes in the past two years, the book expands on DOL's regulatory and enforcement programs and litigation related to pension and health and welfare plans, including Environmental, Social, and Governance (ESG), cybersecurity, and mental health parity issues, as well as updates DOL's litigation against plan sponsors, fiduciaries, and service providers.
Pension plan updates reflected in the 2022 edition include:
- ESG Regulations and Enforcement Position: DOL's evolving approach to ESG concerns and economically targeted investments as they relate to fiduciary duties in connection with plan investments and proxy voting
- Cybersecurity Investigations: Recent guidance on cybersecurity risks and enforcement with respect to plan sponsors, fiduciaries, and service providers
- Missing Participant/Terminated Vested Participant Investigations: DOL's increased enforcement of this national project and priority, including recent guidance and approaches to resolution
- Ongoing Enforcement and Litigation: DOL's continuing focus on fiduciary duties and prohibited transactions, including in connection with employer stock ownership plans, knowing participation liability, and equitable remedies available against fiduciaries and non-fiduciaries
Health plan updates in the 2022 edition include coverage of:
- Mental Health Parity Enforcement: Guidance, investigations, and litigation related to required parity in employer-sponsored group health plans' coverage for mental health and substance use disorders with coverage for medical conditions
- Broker and Consultant Disclosure Requirements: Statutory amendment and guidance requiring disclosures by brokers and consultants to health plans
- Multiple Employer Welfare Arrangements (MEWA) Litigation: DOL's use of the All Writs Act to stay federal and state ERISA actions involving insolvent health plans and MEWAs for orderly plan termination and disposition of benefit claims
- Wellness Programs: DOL's increasing focus on compliance with its regulations for nondiscriminatory wellness programs and related litigation
About the Authors
Tess Gee's employee benefits practice specifically focuses on litigation and counseling in connection with fiduciary responsibilities under ERISA. She served for nearly 15 years at DOL in the Office of the Solicitor, including as a Deputy Associate Solicitor in the division responsible for ERISA litigation and advice. While at 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, and funding and other issues under Title IV of ERISA. Since leaving DOL, Tess has represented plan sponsors, fiduciaries, and service providers in DOL investigations, litigation involving DOL, and class actions.
Anthony Shelley focuses on litigation and regulatory issues relating to health and pension benefits. His experience includes matters involving ERISA (including litigation against the Pension Benefit Guaranty Corporation (PBGC) in connection with distress plan terminations) and the Affordable Care Act (ACA). He has defended companies and plans in class actions and individual suits concerning challenges to benefits denials, exclusions from coverage, fiduciary actions, medical provider claims, and subrogation and reimbursement determinations. He has dealt in depth with issues of federal jurisdiction and preemption of state law, as well as governmental regulatory authority, subpoena powers, and administrative law. Anthony has argued before the U.S. Supreme Court and nearly all of the U.S. Courts of Appeals.
Dawn Murphy-Johnson litigates and counsels on complex legal issues arising under federal law, with a focus on ERISA and the ACA. She regularly represents clients in disputes concerning a broad range of ERISA matters, with a particular emphasis on fiduciary duties, benefits denials, and the applicability of ERISA to compensatory arrangements. In her career as a litigator and appellate advocate, she has second-chaired trial teams for civil and criminal matters and has extensive experience representing parties and amici at all stages of briefing before the U. S. Supreme Court and in the federal Courts of Appeals, including as second-chair in oral argument before the Supreme Court.
About Miller & Chevalier
Founded in 1920, Miller & Chevalier is a Washington, DC law firm with a global perspective and leading practices in Tax, International Law, Litigation, ERISA, White Collar Defense and Internal Investigations, Government Contracts, and Government Affairs. Miller & Chevalier is a top-ranked firm sharply focused on targeted areas that interact with the federal government. A significant number of firm lawyers have held senior positions in the U.S. government and have written many of the regulations they currently help clients navigate. For more information on the firm, visit www.millerchevalier.com.
Theresa S. Gee, Member, Employee Benefits Department, Miller & Chevalier, 202-626-5928
Anthony F. Shelley, Member, Employee Benefits Department, Miller & Chevalier, 202-626-5924
Dawn E. Murphy-Johnson, Counsel, Employee Benefits Department, Miller & Chevalier, 202-626-6050
Laura Miller, Media Relations, Greentarget, 312-252-4104