Mary J. Bortscheller is an Associate at Cohen Milstein and a member of the firm’s Employee Benefits Practice Group. In this role, Ms. Bortscheller represents the interests of employees, retirees, and plan participants and beneficiaries in ERISA cases in the district court and on appeal.
Ms. Bortscheller is a hands-on, strategic litigator, thoroughly versed in the complexities of ERISA law. In 2019, she was named a Law360 “Rising Star,” recognizing lawyers under the age of 40 whose professional accomplishments transcend their age.
Ms. Bortscheller is involved in a series of groundbreaking cases involving employer-sponsored defined benefit plans known as “church plans,” where non-profit health care systems in the United States claim their benefit plans are exempt from ERISA regulation under the church plan exemption. Ms. Bortscheller also represents employees in litigation involving 401(k) plans and Employee Stock Ownership Plans (ESOPs) in complex breach of fiduciary duty litigation under ERISA.
Ms. Bortscheller is currently litigating the following matters:
- U.S. Bank Pension Plan Litigation (D. Minn.): Cohen Milstein is court-appointed lead counsel to a putative class of defined benefit participants of U.S. Bank Pension Plan, which alleges that the Plan’s fiduciaries breached their fiduciary duties by permitting the Plan to invest 100% of its assets in equities, either in direct stock holdings or through mutual funds managed by a U.S. Bank subsidiary. This strategy failed to safeguard principal through proper risk management and diversification of asset classes and caused the Plan to lose $1.1 billion. After the 8th Circuit affirmed dismissal on standing grounds, the Supreme Court granted certiorari and the case will be argued in early 2020.
- BlackRock 401(k) Plan Litigation (N.D. Cal.): Cohen Milstein represents participants in the BlackRock 401(k) Plan, who allege that the Plan fiduciaries violated their duties under ERISA by investing employees’ 401(k) savings almost exclusively in BlackRock proprietary funds and by using BlackRock subsidiaries to broker securities lending deals using the Plan’s assets.
- 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.
- Western Milling ESOP Litigation (E.D. Cal.): Cohen Milstein is representing plaintiff in a suit brought on behalf of participants and beneficiaries of the Western Milling Employee Stock Ownership Plan. Plaintiff, a participant in the ESOP, alleges that the ESOP’s fiduciaries breached their fiduciary duties and engaged in prohibited transactions under ERISA by causing the ESOP to purchase 100% of Kruse-Western, Inc. company stock at an inflated stock price which did not take into account significant liabilities of the company. The value of the company stock subsequently dropped by 90% shortly after the purchase and has not significantly recovered.
Ms. Bortscheller was also significantly involved in the following high-profile successes:
- Bon Secours Health System Church Litigation (D. Md.): Cohen Milstein served as lead counsel to a class of defined benefit participants of seven Bon Secours Health System Inc. pension plans which plaintiffs alleged improperly operated under the “church plan” exemption of ERISA. In May 2017, the court granted final approval of a settlement of over $102 million, one of the largest settlements of its kind.
- Trinity Health Corporation Church Plan Litigation (D. Md.): Cohen Milstein served as co-lead counsel to a class of defined benefit participants of Trinity Health Corp. pensions plans which plaintiffs alleged improperly operated under the “church plan” exemption of ERISA. In May 2017, the court granted final approval of a $75 million settlement.
- Advocate Health Care Church Plan Litigation (N.D. Ill.): Cohen Milstein served as co-lead counsel to a class of defined benefit participants, who alleged that the hospital’s plan was not a church plan and thus the class was entitled to ERISA’s protections. After the Supreme Court redirected this case back to the district court, in June 2018, the court granted final approval of a settlement, which provides a guarantee of accrued benefits for ten years and significant non-monetary equitable consideration.
- SSM Health Care Church Plan Litigation (E.D. Mo.): Cohen Milstein served as lead counsel to a class of defined benefit participants who alleged that SSM Health improperly operated its defined benefit pension plans under the ERISA church plan exemption, thereby underfunding the plans as required by ERISA to the detriment of plan benefits. In June 2019, the court granted final approval of a $60 million settlement.
In addition to her ERISA case work, Ms. Bortscheller has represented, pro bono, unaccompanied minor clients in immigration proceedings. Prior to joining Cohen Milstein in 2013, Ms. Bortscheller practiced at a boutique commercial litigation firm based in Chicago, where she represented plaintiffs in antitrust and qui tam matters, as well as defendants in general commercial litigation.
Ms. Bortscheller graduated from Gustavus Adolphus College with a B.A., cum laude, in Political Science, and received her J.D., cum laude, from American University, Washington College of Law. During law school, she served as Features Editor and Senior Editor of Sustainable Development Law & Policy and was a staff member of the American University International Law Review. Ms. Bortscheller served as a judicial intern with the United States District Court for the District of Minnesota.
Before attending law school, Ms. Bortscheller served in the United States Peace Corps teaching English as a foreign language in Sichuan Province, China. Following law school, she was a volunteer for the Chicago Legal Clinic, Inc.'s Foreclosure Defense Project.