In celebration of the 40th anniversary of ERISA, more than 100 attorneys and other advocates engaged in spirited dialogue and explored areas of possible agreement at a day-long conference held in Washington, D.C on October 24. The event, convened by the Pension Rights Center and hosted by the law firm McDermott Will & Emery, was supported by 21 law firms and organizations. Presentations and discussions focused on judicial decisions affecting the ability of individuals to enforce rights conferred by the Employee Retirement Income Security Act of 1974 (ERISA) and the responsibilities of plan fiduciaries in selecting investments under this landmark law.
The conference was the first-ever effort to bring plan and participant advocates together to examine issues related to the enforcement of ERISA rights and responsibilities, and to search for common ground. To provide balance and foster discussion among differing points of view, speakers, panelists, and supporters of the conference were evenly divided between those representing plans and those representing participants. The agenda was developed by a 10-member steering committee, which was equally representative of both sides.
“There is a delicate balance between participants having their day in court and making sure that litigation and administrative costs are not so great that employers will no longer want to maintain their plans,” Pension Rights Center Director Karen Ferguson said in her opening remarks.
Norman Stein, professor of law at the Thomas R. Kline School of Law at Drexel University, and Scott Macey, the president and CEO of the ERISA Industry Committee framed the issues at the start of the conference. “The backdrop, context, and focus of the conference today are [Supreme Court] decisions rendered over the last 40 years involving remedies and access to courts. Most of these decisions have created new questions even as they’ve answered old ones – and some of the new questions I fear may take another 40 years of litigation to fully resolve,” Stein said.
Macey was cautiously hopeful about the prospect of resolving these questions. “Seeking common ground in an adversarial venture is not an easy thing to do,” he said. “But, I truly believe there are areas of common ground.”
Panel discussions were divided into two broad categories related to ERISA. On the topic of participants’ access to the courts, Heimeshoff v. Hartford Life highlighted issues surrounding statutes of limitations, while Hardt v. Reliance Standard focused on attorney’s fees. On the topic of obtaining relief, U.S. Airways v. McCutchen and Cigna Corp. v. Amara were the starting point for discussions on equitable remedies, and Fifth Third Bancorp v. Dudenhoeffer, on fiduciary responsibilities. Panelists, several of whom had litigated these Supreme Court and related cases, presented and vigorously debated their outcomes.
The conference also featured sessions in which three of the drafters of ERISA discussed how the topics at hand were addressed when the law was written and what Congress may or may not have intended. Frank Cummings, chief of staff to Senator Jacob R. Javits, designed the original 1967 pension reform bill that became the starting point for ERISA. Henry Rose helped write ERISA as Associate Solicitor at the Labor Department and was the first General Counsel for the Pension Benefit Guaranty Corporation, which insures most pension benefits in the private sector. William J. Kilberg was Solicitor for the Department of Labor in the 1970s and represented the Nixon Administration in the crafting of ERISA.
Phyllis C. Borzi, Assistant Secretary of Labor for Employee Benefits Security, was the keynote speaker at lunch. She noted that regulation, rather than legislation and litigation, has been and continues to be a more effective way to address some of the critical issues contained in ERISA. “The legislative process is an imperfect tool for change” that is often compromised by influential parties who are focused on narrow interests. “Litigation at best is a blunt instrument,” she added, but one that helps identify gaps in a law that need to be addressed. Regulation, on the other hand, has proved more helpful because, unlike legislation and litigation, it offers “a fulsome public debate where all sides have an opportunity to express their views” through the public comment process.
The conference concluded with a panel titled “Are legislative or regulatory changes needed? Is there common ground?” Panelists suggested a range of topics that might be amenable to common-ground reform proposals and reached agreement on a few, notably in the areas of disclosure of statutes of limitations and recovery of overpayments. A reception on the rooftop terrace of the McDermott building followed.
The Pension Rights Center will work with conference participants to determine next steps for continuing the dialogue. “There was a lot of enthusiasm to keep the exchange of ideas and perspectives going,” said Ferguson. “Our hope is that this event marks the start of a cooperative effort by the ERISA legal community to address these critical issues.”