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Update on Current Supreme Court ERISA Developments and Fallout From Recent Decisions

Level: Advanced
Runtime: 93 minutes
Recorded Date: January 13, 2022
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  • Fee Litigation - Hughes v. Northwestern University
  • Thole v. U.S. Bank N.A., 140 S. Ct. 1615
  • Rutledge v. Pharmaceutical Care Management Association, 592 U.S., 141 S.Ct. 474, 208 L.Ed.2d 327
  • First Reliance v. Giorgio Armani
  • Howard Jarvis Taxpayers Ass'n v. California Secure Chioce Retirement Savings Program (CalSavers), 997 F.3d 848
  • Notable Cert Denials - Non-Employer Stock Cases
  • Cert Pending
Runtime: 1 hour, 33 minutes
Recorded: January 13, 2022

For NY - Difficulty Level: For experienced attorneys only (non-transitional


Our distinguished speakers explain recent Supreme Court developments and matters awaiting decision. The panel will give special attention to the pending Northwestern University 401(k) fee litigation that has the potential to significantly impact ERISA litigation going forward, and revisit Rutledge v. Pharmaceutical Care Management Association , the Court’s most recent pronouncement on the scope of ERISA preemption. The impact of the Court’s decision in Thole v. US Bank will also be addressed, particularly with respect to how the decision has been applied in the health plan arena and areas other than its core standing ruling, such as class certification. The speakers will also address pending petitions for certiorari, and predict which cases may attract the Court’s attention in the months ahead.

This program was recorded on January 13th, 2022.

Provided By

American Bar Association
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Sara Pikofsky

Steptoe & Johnson LLP

A seasoned litigator, Sara Pikofsky has extensive experience in all phases of litigation, with a focus on violations of ERISA's fiduciary duty and prohibited transactions provisions, as well as the defense of employers in withdrawal liability disputes. She also advises clients in regard to withdrawal liability risks related to transactions. Her experience covers matters at the trial and appellate levels, including numerous appellate cases. In addition to her litigation experience, Sara advises clients with respect to Department of Labor investigations and on compliance with ERISA's plan asset rules.

Sara previously served as a trial attorney for the US Department of Labor's Office of the Solicitor, Plan Benefits Security Division. In that capacity, she gained significant litigation experience in matters involving pension and welfare plans, including breach of fiduciary duty claims relating to investments in securities and real estate, among others.

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Emily Seymour Costin

Alston & Bird LLP

Emily Seymour Costin is a litigator in Alston & Bird’s Washington, D.C. office and leader of the firm’s ERISA Litigation practice team. Emily represents employers, plan sponsors, insurers, and fiduciaries in litigation over benefits and fiduciary matters under ERISA, including those involving investments, excessive fees, employer stock, actuarial factors, benefit termination, and health benefits. She has a track record of advising diverse groups of clients in other types of disputes involving employment, labor, securities, and health care, insurance, contracts, and professional malpractice. She’s experienced in managing administrative claims and appeals, and responding to government audits, investigations, and subpoenas. Emily also counsels clients on ERISA fiduciary best practices and other litigation avoidance strategies.

Emily is recognized by Chambers USA: America’s Leading Lawyers for Business (ERISA Litigation – Nationwide) and The Best Lawyers in America? in Litigation – ERISA. In 2018, she was one of five nationally recognized lawyers named a “Rising Star” by Law360 in the field of employee benefits.

Emily is a national co-chair of the firm’s Women’s Initiative and participates on the firm’s Diversity Steering Committee.

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Joe Faucher

Trucker Huss, APC

Joe Faucher has been litigating ERISA matters and other employee benefit related cases for more than 30 years. His ERISA litigation experience includes defending class actions for breach of fiduciary duty against retirement plan sponsors and fiduciaries involving allegations of excessive fees and imprudent investment offerings. He has represented plans and fiduciaries in numerous cases involving claims for benefits against retirement plans, disability insurance plans, health insurance plans and life insurance plans.

Joe also has significant expertise in representing independent employee stock ownership plan (ESOP) trustees in cases brought by the U.S. Department of Labor and by private plaintiffs. Joe has also represented ESOP fiduciaries during Department of Labor investigations of ESOP transactions. In a recent high-profile ESOP litigation matter brought by the DOL, Joe’s work was instrumental in bringing about a settlement, on the eve of trial, for a fraction of the plaintiff’s original demand.

Joe has also represented numerous employee benefit plan service providers, such as third party administrators, actuaries, registered investment advisers and insurance carriers. In addition to his litigation practice, Joe actively counsels clients regarding risk management and insurance coverage issues, and, in the employee benefit context, helps clients comply with applicable Department of Labor regulations. He has helped numerous service providers draft service agreements for use with their clients.

For several years before joining Trucker Huss, Joe was the senior West Coast ERISA litigator at a large national firm, and for many years before that was a partner in a prominent Southern California law firm where he focused his practice in ERISA and employee benefits litigation issues. He has been named a Southern California “Super Lawyer” in the area of employee benefits several years running. He is admitted to practice in California, the Supreme Court of the United States, the Courts of Appeals for the Fourth, Seventh and Ninth Circuits, all California U.S. District Courts and the District of Colorado. He has substantial experience in arguing matters before the Ninth Circuit Court of Appeals.

Joe is a frequent speaker on ERISA and employee benefits litigation subjects, and has written numerous articles and white papers on topics of interest to benefit plan sponsors, fiduciaries and service providers.

Because modern-day civil litigation typically involves mediating matters before they proceed to trial, Joe – who has mediated dozens of cases as an advocate on behalf of his clients – also recently completed the prestigious course “Mediating the Litigated Case” offered by the Straus Institute for Dispute Resolution of Pepperdine/Caruso School of Law.

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Mark Boyko

Bailey & Glasser LLP

Mark Boyko practices primarily in the area of complex fiduciary breach and prohibited transaction litigation, representing clients in actions brought under the Employee Retirement Income Security Act of 1974 (ERISA). He has secured judgments and settlements in this area exceeding $350 million and handled successful appeals in federal circuit courts as well as the US Supreme Court.

Mark is a pioneer in ERISA class action litigation, representing workers and retirees in many of the earliest cases in his field. In these matters, Mark represents 401(k) plan participants alleging breach of fiduciary duties in order to hold employers and Wall Street accountable for the plans’ investments and fees.

His practice also includes numerous private company ESOP cases in which he represents workers claiming that fiduciary trustees caused their employee stock ownership plans (ESOPs) to overpay corporate insiders for private company stock. Additionally, Mark represents pension plan participants in cases alleging that plans using decades-old mortality tables have unfairly reduced monthly benefits for married retirees.

Mark also provides legal and strategic services to founders, startups, and small businesses from pre-conception through Series-A funding.

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