Weil defended AIG and certain current and former employees in a putative class action under ERISA on behalf of participants in certain 401(k) plans sponsored by AIG (the Plans) during the period August 7, 2007 through May 1, 2009 and whose participant accounts included shares of AIG’s Stock Fund. Plaintiffs alleged, among other things, that the defendants breached their fiduciary responsibilities to the Plans’ participants and their beneficiaries under ERISA by continuing to offer the AIG Stock Fund as an investment option in the Plans after it allegedly became imprudent to do so; they claim that the purported violations caused hundreds of millions of dollars in damages. The alleged ERISA violations related to, among other things, the defendants’ purported failure to monitor and/or disclose unrealized market valuation losses on AIG Financial Product’s super senior credit default swap portfolio. In light of the U.S. Supreme Court’s decision in Fifth Third Bancorp v. Dudenhoeffer, No. 12-751 (U.S. June 25, 2014), which rejected the presumption of prudence in favor of ERISA fiduciaries that many courts had previously applied, the Court denied defendants’ motion to dismiss without prejudice to renewal of defendants’ motions on other grounds besides the presumption of prudence. The Court’s order required the parties to meet and confer concerning the impact of the Fifth Third Bancorp case and the possibility of settlement. On January 6, 2015, the parties informed the Court that they had accepted a mediator’s proposal to settle the class action for $40 million – a fraction of the more than $300 million value that the plaintiffs ascribed to their claims, the entirety of which amount was paid by AIG’s insurers. The Court approved the class settlement in September 2015.

Weil successfully represented members of the AIG Retirement Board against claims by a participant claiming that the defendants breached their fiduciary duties under ERISA by failing to bring a professional malpractice claim against PricewaterhouseCoopers for allegedly conducting a negligent audit of AIG.

Weil represented Genworth in a purported nationwide class action filed in the Northern District of Ohio related to the optional inflation rider on Genworth long-term care insurance policies. The named plaintiff, the estate of a deceased beneficiary, alleged it was due additional benefits under the beneficiary’s long-term care insurance policy. Weil filed a motion to transfer the action to Connecticut, as well as a motion to dismiss the complaint. Following the filing of these motions, the plaintiff agreed to voluntarily dismiss the complaint.

Weil represented Health Management Associates, Inc. (HMA), certain of its executive officers and directors, and members of the HMA’s Retirement Committee in a putative class action under ERISA on behalf of participants in a 401(k) plan sponsored by HMA whose participant accounts included shares of HMA’s common stock. Plaintiffs alleged, among other things, that the defendants (i) breached their fiduciary responsibilities to the Plan’s participants and their beneficiaries under ERISA by continuing to offer the HMA Stock Fund as an investment option in the Plan after it allegedly became imprudent to do so; (ii) failed to communicate complete, full and accurate information regarding the Plan’s investments in HMA’s common stock; and (iii) suffered from conflicts of interest. The court granted our motion to dismiss in full, with prejudice, and held that: (1) HMA, as the Plan sponsor, did not function in a fiduciary capacity with respect to the Plan’s continued investment in the HMA Stock Fund; (2) Plaintiffs failed to state a claim for breach of the ERISA fiduciary duty of prudence because (a) Plaintiffs’ prudence claim in fact was a veiled claim that Defendants should have diversified the Plan’s investments, and therefore was barred by ERISA § 404(a)(2), which exempts fiduciaries of eligible individual account plans from the fiduciary duty to diversify plan assets, and (b) Plaintiffs failed to allege sufficient facts to establish that the fiduciaries knew or should have known that continued investment in the HMA Stock Fund was imprudent; and (3) Plaintiffs failed to state a claim for breach of any ERISA disclosure obligations because ERISA does not require a fiduciary to provide information as to the soundness of investments in the Plan.

Weil represented Howard Wohl, a co-founder of Ivy Asset Management LLC and Ivy’s former Chief of Investment Management, in an action commenced by the Trustees of the Upstate Engineers Pension Fund stemming from Ivy’s advice with respect to investments with Bernard L. Madoff Investment Securities LLC (Madoff). Plaintiffs alleged, among other things, that Ivy, Mr. Wohl, and certain other individuals employed by Ivy breached their ERISA fiduciary duties by failing to take prudent actions to monitor Madoff and his purported trading and failing to disclose the extent of the suspected misconduct by Madoff. Plaintiffs further alleged that Mr. Wohl and his co-founder placed pension assets at risk for their own benefit when they allegedly failed to disclose their concerns about Madoff to Plaintiffs, purportedly to ensure that the Bank of New York would acquire Ivy. Plaintiffs sought disgorgement under ERISA § 409(a) from Mr. Wohl and his co-founder of the entire $200 million that they received in connection with the Bank of New York’s acquisition of Ivy.

In September 2015, the S.D.N.Y. granted Defendants’ motion to dismiss in its entirety, which was later affirmed by the Second Circuit in 2016. The U.S. Supreme Court denied plaintiffs petition for a writ of certiorari in 2017.

• Weil won dismissal of claims by a participant in the Lehman Brothers Savings Plan who sought to sue the Plan’s auditor for professional malpractice "derivatively on the Plan’s behalf".
• Weil defended the Employee Benefit Plans Committee Of Lehman Brothers Holdings Inc. in a lawsuit filed by the PBGC to terminate Lehman’s retirement plan, and settled the case on favorable terms, relying on a creative interpretation of Title IV of ERISA, the Federal Rules of Civil Procedure, and Constitutional Due Process guarantees.

Weil successfully represented Marsh in an action by two former executives seeking to obtain severance benefits and the value of stock options forfeited when they were terminated in the aftermath of a New York state investigation into the practice of “contingent commissions” and alleged bid-rigging. In June 2012, the U.S. District Court for the Southern District of New York dismissed the plaintiffs’ claims for malicious prosecution and abuse of process on the pleadings. In its January 2015 decision granting Marsh’s motion for summary judgment, the Court dismissed Plaintiffs’ remaining claims for severance benefits under ERISA and for the value of their forfeited equity awards under state law. In June 2016, the Second Circuit affirmed the summary judgment decision in its entirety, and for the first time established a solid legal framework supporting the right of a company to terminate an employee who fails to cooperate in an internal investigation.

Weil helped Sanofi-Aventis U.S. LLC secure the dismissal of an ERISA class action in the S.D.N.Y. claiming that Sanofi’s pension plan breached ERISA fiduciary duties by allegedly allowing plan participants to continue investing in its 401(k) plan during a period of artificial inflation. In the September 30, 2016 decision granting Sanofi’s motion to dismiss, Judge Kevin P. Castel held that the plaintiff lacked standing because he had not suffered an actual loss or injury by merely holding company stock through a period of artificial inflation. Since purchases and sales of company stock would have been frozen if the company disclosed the alleged “kickback scheme,” the court refuted the plaintiff’s claim that he was deprived of the opportunity to sell his stock or transfer it to a more prudent investment. The court ultimately concluded that plaintiffs who merely held stock during a period of artificial inflation cannot meet the injury requirement for standing. Weil was counsel for Sanofi in a related securities case, which also was dismissed.

Weil served as lead counsel for United in a nationwide putative class action in the U.S. District Court for the District of Arizona brought by Spinedex, a physical therapy provider that purported to have received an assignment of the rights and benefits of at least 60 plan participants and/or beneficiaries, two individuals treated by the plaintiff provider, and the Arizona Chiropractic Society. In addition to representing United and its subsidiaries, Weil represented 35 of the 45 employer-sponsored health plans named as co-defendants. The Ninth Circuit, in its November 5, 2014 opinion reviewing the district court’s grant of summary judgment in defendants’ favor on all claims, expressed its views on several distinct issues likely to recur in ERISA lawsuits throughout the country, including assignments of benefits, constitutional standing, the enforceability of limitations periods stated in the plan, and whether a claims administrator of a self-funded ERISA plan may be sued for benefits. Following the Ninth Circuit’s decision – which affirmed in part, reversed in part, vacated in part, and remanded – defendants petitioned the U.S. Supreme Court for a writ of certiorari, which was denied on October 13, 2015. Back before Judge Silver in the District of Arizona, Defendants moved again for partial summary judgment, which the Court granted in part in December 2017 – removing dozens of plans from the case (and diminishing the potential class-wide exposure) on the basis that most of Spinedex’s claims were untimely under Arizona’s one-year statute of limitations for ERISA benefits claims. Judge Silver’s decision also addressed several other arguments including constitutional and statutory standing, as well as anti-assignment provisions precluding a provider from filing a civil suit on behalf of a participant. On January 25, 2019, the Court granted the parties’ joint motion for conditional certification of settlement class, preliminary approval of settlement agreement, and approval of form and content of notice to settlement class members. The settlement included a payment to a settlement class of $1.475 million, a fraction of the initial amount sought by the putative class. The court entered its judgment of dismissal on August 2, 2019.

Weil successfully defended UnitedHealth Group in a putative class action filed by a participant in a self-funded health plan sponsored by AllianceBernstein L.P. alleging violations of ERISA §§ 502(a)(1)(B), 502(a)(3), 503, and 502(c)(1)(B), based primarily on defendants’ alleged improper coordination with Medicare of benefits, and the defendants’ alleged failure to provide a full and fair review of healthcare benefit claims. On November 7, 2014, the court granted UnitedHeath Group’s renewed motion for summary judgment, resulting in a complete dismissal of all remaining claims against UnitedHealth Group. On April 27, 2015, the court denied in its entirety Plaintiff’s motion to amend her complaint again. The matter was resolved amicably in December 2015.

Weil represented OptumInsight, Inc. and UnitedHealth Group, Inc. and related entities, as well as several corporations and their self-funded ERISA health plans, in a putative class action by two California ambulatory surgery centers (ASCs) on behalf of a proposed nationwide class of ASCs, alleging that the methods used by UnitedHealth Group to reimburse out-of-network (OON) claims for services performed by ASCs was arbitrary and capricious. In two dismissal orders in March and December 2013, the court dismissed with prejudice plaintiffs’ claims under ERISA §§ 502(a)(3), the RICO claims as well any claims arising out of unidentified methods used to reimburse OON claims for services performed by ASCs. Following mediation in April 2015, the parties agreed to a settlement in principle on terms favorable to our clients, and on May 16, 2016, the court granted final approval. The court entered final judgment dismissing the claims with prejudice on June 3, 2016, and the settlement funds were dispersed on August 15, 2016.

Weil also successfully defended a class action suit filed by members of health care plans in the D.N.J. against UnitedHealth Group, Inc., Ingenix, Inc., and other insurers. Plaintiffs asserted ERISA, RICO, and antitrust claims, among others, based on allegations that the reimbursement rates for out-of-network coverage were artificially low due to the insurers’ use of databases supplied by Ingenix. The district court dismissed the antitrust claims for failure to state a claim, the RICO claim for lack of standing, and the state law claims as pre-empted by ERISA. Plaintiffs took an appeal to the Third Circuit on the RICO claim, and the Third Circuit affirmed the dismissal.

Weil represented the University of Miami (UM) in a putative ERISA class action filed in the U.S. District Court for the Southern District of Florida by a former member of the “voluntary faculty” at the University of Miami School of Medicine.

The plaintiffs asserted a single claim against UM under ERISA § 502(a)(3), claiming that UM breached its fiduciary duties by failing to extend to them the opportunity to participate in various retirement and welfare benefit plans offered to regular employees, including the plans for health care insurance, dental insurance, vision insurance, long term disability insurance, short term disability insurance, long term care insurance, life insurance, accident insurance, flexible spending accounts, tuition remission, and legal assistance.

Weil filed a motion to dismiss the plaintiff’s complaint for failure to state a claim, arguing, among other things, that voluntary faculty members were not defined as eligible “participants” under the express terms of the plans and that the plaintiffs could not seek monetary relief for unpaid benefits under ERISA § 502(a)(3). The parties reached a settlement, and the case was dismissed with prejudice in December 2017.

Weil represents WMILT in a suit brought by former employees of Washington Mutual, Inc. (WMI) and/or Washington Mutual Bank seeking payments based on employment agreements and benefit plans providing for the payment of certain amounts in the event of a “change in control” against the Chapter 11 estate of WMI. Two of the benefit plans at issue are governed by ERISA, and certain claimants are seeking benefits based on the language contained in a summary plan description, which vary from the terms in the ERISA plan. Among other reasons, WMILT objected to the employees’ claims on the grounds that (a) neither of the Debtors was the employees’ employer responsible for the claimed change-in-control benefits, and (b) that no “change-in-control” occurred within the meaning of the relevant documents. In April 2014, the Bankruptcy Court  for the District of Delaware granted WMILT’s motions for partial summary judgment thereby capping, pursuant to 11 U.S.C. § 502(b)(7), the maximum allowable amount payable on account of the employees’ claims. As a result of the favorable ruling, approximately $48.4 million above and beyond the employees’ 502(b)(7) cap amounts was released to creditors.

Separately, WMILT sought approval from the FDIC to pay the remaining employee claims. However, the FDIC determined that any such payments were prohibited by the Golden Parachute Regulations, and the U.S. District Court for the District of Columbia upheld the FDIC’s determinations. Accordingly, in August 2018, WMILT requested that the Bankruptcy Court deem the remaining employee claims disallowed. The employee claimants opposed WMILT’s motion and challenged the FDIC’s determinations. After months of motion practice, the Court granted WMILT’s motion in full, deemed all of the employee claims disallowed, and authorized WMILT to release the $66 million held in the disputed claim reserve.