Our nationally acclaimed Employee Benefits/ERISA attorneys represent the interests of employees, retirees, and plan participants or beneficiaries in their pursuit of economic justice.  Through often cutting-edge class actions, we address the mismanagement of employee retirement benefit plans governed by the Employee Retirement Income Security Act (“ERISA), including:

  • 401(k) plans
  • Employee Stock Ownership Plans ("ESOPs")
  • Traditional pension plans

We also address mismanagement issues of other types of health and employee benefit plans.  

Recognition for Our Work

We have been recognized by the legal industry as one of the top ERISA plaintiffs’ firms in the country:

Industry commentary has included:

"Cohen Milstein Sellers & Toll does first-class work and is very strong in this practice area."

"I view them as one of the best ERISA trial practices in the country, they are a joy to work with."

Chambers USA

Making an Impact

We have led some of the most significant ERISA-related litigation in recent U.S. history, including up to the U.S. Supreme Court. Precedent-setting decisions include:

  • Defeating Motion to Compel Arbitration: Enforceability of arbitration clauses is a crucial issue for workers, which can entirely shift the dynamics of a case and their pursuit of economic justice. We defeated a motion to compel arbitration in Triad Manufacturing Inc. ESOP, Smith v. GreatBanc Trust Company, et al. (N.D. Ill.) and achieved a precedent-setting decision in the Seventh Circuit upholding the lower court's ruling, which other courts have cited in allowing other ERISA class actions with similar arbitration clauses to move forward.
  • In re Beacon Association Litigation: Acted as ERISA Counsel for a certified class which settled their claims for $219 million, representing 70% of the Class members’ out-of-pocket losses. The judge praised the settlement, describing the outcome as “extraordinary” and the praising the “hard work” done by plaintiffs’ counsel, including Cohen Milstein.

We also have the unique capability to represent employees who purchased overvalued employer stock through employer-sponsored 401(k) retirement plans, given our extensive experience with securities fraud and investor protection litigation. While employees may pursue claims under securities fraud laws, ERISA provides additional rights and remedies to recover losses in 401(k) retirement plans.

The following cases are representative of our litigation capabilities:

401(k) Retirement Plans

Building on Cohen Milstein's extensive experience of the Securities Fraud/Investor Protection practice area, the firm also represents employees who purchased overvalued employer stock through employer-sponsored 401(k) retirement plans. In these cases, the firm represents employees alleging breach of fiduciary duties in order to hold employers and the plan fiduciaries accountable for misrepresentations which artificially inflated the value of the employer stock purchased through their 401(k) plans. While these employees may also have claims under the securities fraud laws, ERISA provides employees with significant additional rights and remedies to recover losses in employer stock lost through a 401(k) retirement plan. Cohen Milstein has litigated or is actively litigating the following cases in involving the acquisition of fraudulently inflated employer stock through the following companies' 401(k) plans:

  • Wells Fargo 401(k) Litigation (D. Minn.): We recently achieved a $32.5 million settlement prior to class certification and expert discovery. If granted final approval by the court, the settlement will recover 40% of estimated damages.
  • SunTrust 401(k) Litigation (N.D. Ga.): We achieved a $29 million settlement in this certified class action in which plaintiffs alleged that the SunTrust 401(k) plan administrators violated their fiduciary duty by restricting plan options to only SunTrust-affiliated funds, despite their higher fees and stagnant performance. 
  • BlackRock 401(k) Litigation(N.D. Cal.): We successfully settled this certified class action in which plaintiffs alleged that the BlackRock 401(k) plan administrators engaged in corporate self-dealing—restricting plan options to BlackRock’s own proprietary funds, and in many cases failing to provide the lowest cost versions of those funds.
  • T. Rowe Price 401(k) Litigation (D.M.N.): We successfully settled this certified class action, in which plaintiffs allege that T. Rowe Price violated federal law and reaped millions of dollars in illicit fees by offering only T. Rowe Price’s own in-house investment funds in the 401(k) Plan, failing to offer the lowest cost versions of those funds, and failing to even consider any funds from other companies that offered lower fees and better performance. The court has preliminarily approved this settlement.
  • Merrill Lynch ERISA Litigation (S.D.N.Y.): We served as interim co-lead counsel in a class action alleging that fiduciaries of Merrill Lynch retirement plans imprudently purchased and held inflated Merrill employer stock for the retirement accounts of the companies’ employees. The litigation was resolved for $75 million.

Employee Stock Ownership Plans (ESOPs)

  • Casino Queen ESOP Litigation (S.D. Ill.): To date, we have won two motions to dismiss in this case on behalf of employee participants.  We represent ESOP participants who allege that the Board of Directors of CQ Holding Company, Inc. and related defendants violated ERISA when they created an ESOP to buy their Casino Queen stock for $170 million, a significantly inflated price. 
  • Western Global Airlines ESOP Litigation (D. Del.): We represent employees in connection challenging the valuation of Western Global Airlines at approximately $1.3 billion based on the sale of 37.5% of the Company to the ESOP for $510 million. The lawsuit seeks to restore substantial losses to the ESOP and to disgorge all ill-gotten gains received by the Neff family.
  • Triad Manufacturing Inc. ESOP Litigation (N.D. Ill.): We defeated a motion to compel arbitration in this case and thereafter achieved a precedent-setting decision in the Seventh Circuit upholding the lower court's decision denial of the motion to compel arbitration. As a result of this decision, we, along with co-counsel, were recognized in The American Lawyer as “Litigators of the Week.”
  • Western Milling ESOP Litigation (E.D. Cal.): We represent participants and beneficiaries of the Western Milling Employee Stock Ownership Plan, who allege that the ESOP’s trustees breached their fiduciary duties by engaging in risky investments in violation of ERISA, including purchasing 100% of Kruse-Western, Inc. company stock, which was valued at approximately 90% of the purchase price for several years after the ESOP Transaction.

Pension Plans

  • AT&T Pension Benefit Plan Litigation (N.D. Cal.): Cohen Milstein represents plaintiffs and a putative class of participants and beneficiaries in the AT&T Pension Benefit Plan in a case alleging AT&T improperly calculated the pension benefits of certain retirees who retired early and/or took a joint and survivor annuity. As a result of the improper calculation, plaintiffs received a lower pension benefit than they were entitled to under ERISA.
  • Dignity Health Church Plan Litigation (N.D. Cal.): We were co-counsel to a class of defined benefit participants, which alleges that Dignity Health is improperly claiming that its pension plans are exempt from ERISA’s protections because they are “church plans,” and as a result has underfunded its plans by over $1.2 billion. In 2016, the Supreme Court agreed to hear arguments on consolidated church plan cases, and in June 2017, it reversed previous rulings and ordered plaintiffs, in this case, to file an amended complaint. In October 2021, the court granted preliminary approval of a $100 million settlement.

Other Employee Benefits

  • LaBow/Severstal: This lawsuit alleged that WPN Corporation and Ronald Labow (the executive officer of WPN Corp), breached their fiduciary duties under ERISA as investment managers of the Severstal Trust by failing to properly diversify the investments. 
  • OregonSaves: Cohen Milstein successfully represented Oregon’s state implemented savings program against a lawsuit brought by the ERISA Industry Committee regarding the program’s employer reporting requirement. 

Amicus and Other ERISA Advice

We have represented entities as amicus and provided advice on ERISA issues; see for example:

  • National Employment Lawyers Association: As amicus before the Second Circuit making the argument that when a contract gives a service provider the discretion to determine what will be charged to the plans and their participants, then the service provider becomes a fiduciary of the plan.
  • Pension Rights Center” as amicus before the U.S. Supreme Court supporting the petitioners on the merits in Tibble v. Edison International, arguing that 401(k) plan fiduciaries must monitor the fees charged by plan investments on a periodic basis, and that participants can sue to require fiduciaries to replace overpriced investment options in 401(k) plans more than six years after the investment options were initially added to the plan.
  • National Association of Insurance Commissioners: As amicus before the U.S. Supreme Court in Rush Prudential HMO, Inc. v. Moran, a case involving the scope of the ERISA preemption of state insurance laws.
  • Pension Rights Center: As amicus before the United States Supreme Court supporting certiorari in Harley v. 3M Company, involving the issue of whether plan participants may sue to recover losses to overfunded defined benefit plans caused by a breach of fiduciary duty.