Michelle C. Yau is a Partner at Cohen Milstein and Co-Chair of the firm’s Employee Benefits/ERISA practice group. In this role, Ms. Yau represents the interests of employees, retirees, plan participants or beneficiaries in ERISA cases, with a focus on ERISA cases involving complex financial transactions or actuarial issues.
Ms. Yau is passionate about protecting pension plan participants. She brings to her practice a unique combination of government experience related to enforcing labor statutes and experience in finance, addressing complex financial instruments. Prior to joining Cohen Milstein in 2007, Ms. Yau was an Honors Program Attorney at the Department of Labor where she enforced and administered a variety of labor statutes, and before pursuing a career in law she worked as a financial analyst at Goldman Sachs in the Financial Institutions Group of the Investment Banking Division.
As a result of this unique experience, Ms. Yau has played an instrumental role in some of the most significant ERISA lawsuits in recent U.S. history, including litigation that emerged from the Madoff Ponzi scheme, including:
- In re Beacon Association Litigation (S.D.N.Y.): Ms. Yau represented a multi-plan class of participants, beneficiaries and fiduciaries, which settled along with other consolidated cases for $219 million in 2013, 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.
- In re Austin Capital Management Litigation (S.D.N.Y.): A case which was settled by the Department of Labor on the ERISA class on very favorable terms, Ms. Yau alleged that Madoff’s returns, based on his advertised investment strategy, were mathematically impossible, a fact Austin Capital ought to have recognized well before the fraud was revealed.
Ms. Yau is presently litigating a series of church plan lawsuits alleging that health care systems wrongfully claim their benefit plans are exempt from ERISA’s protection. She oversees the day-to-day management of these cases, including coordinating all the aspects of the litigation. She is also involved in a series of high-profile class actions involving 401ks, Employee Stock Ownership Plans (ESOPs), and other types of employee benefit plans that are allegedly in breach of ERISA and undervaluing the investments to defined beneficiaries.
Currently, Ms. Yau is representing clients in the following notable matters:
- Dignity Health Church Plan Litigation (N.D. Cal.): Cohen Milstein is 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. Pending final approval by the court, Dignity has agreed to settle class claims for $100 million.
- BlackRock 401(k) Retirement Plan Litigation (N.D. Cal.): Cohen Milstein is representing BlackRock 401(k) Plan participants and beneficiaries, 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.
- Western Milling ESOP Litigation (E.D. Cal.): Cohen Milstein is representing 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 subsequently dropped by 90% shortly after the purchase.
Ms. Yau played an instrumental leadership role in the following high-profile cases:
- Presence Health Plan Litigation (N.D. Ill.): Cohen Milstein represented Presence Health Network-sponsored pension plan participants and beneficiaries, who allege that defendants wrongly claimed that the plans under dispute qualified as ERISA-exempt “church plans” and subsequently denied participants the protections of ERISA, including underfunding the plans by over $175 million. In July 2018, the court granted final approval to a $50 million settlement.
- Trinity Church Plan Litigation: Cohen Milstein is counsel to a class of defined benefit participants in which allege that the hospital’s plan is not a church plan and thus the class is entitled to ERISA’s protections and thereby underfunded the plan by over $600 million. In May 2017, the 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, which alleged that the hospital’s plan was not a church plan and thus the class was entitled to ERISA’s protections. In 2016, the Supreme Court agreed to hear arguments on consolidated church plan cases, and in June 2017, it reversed previous rulings in favor of the plaintiffs. The Supreme Court, however, did not decide plaintiffs’ other theories of liability and this case was returned to the district court for further litigation and subsequent mediation. In June 2018, the court granted final approval of a settlement.
- St. Anthony Medical Center Church Plan Litigation (N.D. Ill.): Cohen Milstein is counsel to a class of defined benefit participants, which alleges that the Medical Center violated numerous provisions of ERISA by improperly operating the plan as exempt from ERISA’s protections. As a result, the class of participants suffered cutbacks as much as 40% of their promised benefits. In April 2019, the court granted final approval to a $4 million settlement.
- Merrill Lynch ERISA Litigation (S.D.N.Y.): Cohen Milstein served as interim co-lead counsel in a class action alleging that fiduciaries of the 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. Ms. Yau was engaged in all aspects of the litigation.
- Madoff Ponzi Scheme Litigation (S.D.N.Y.): Cohen Milstein represented a multi-plan class of participants, beneficiaries and fiduciaries in re Beacon Assoc. Litig. The $219 million settlement in 2013 represented 70% of the Class members’ out-of-pocket losses. Ms. Yau was engaged in all aspects of the litigation.
- Weyerhauser Pension Plan Litigation: Cohen Milstein was lead counsel in a lawsuit alleging that the Weyerhaeuser Company caused its Defined Benefit Retirement Plans to engage in a risky investment strategy involving alternative investments and derivatives, causing the Plans’ master trust to become underfunded. A settlement was reached for injunctive relief on behalf of Plans’ participants and beneficiaries. Ms. Yau was engaged in all aspects of the litigation.
For her work in cutting-edge ERISA litigation, Law360 named Ms. Yau a Rising Star Under 40 in 2014. Ms. Yau is a prolific public speaker and is frequently invited to speak at ABA functions and CLE programs on ERISA litigation updates and trends.
Ms. Yau received her law degree from Harvard Law School in 2003, where she was awarded several public interest fellowships, including the Heyman Fellowship for academic excellence and a demonstrated commitment to federal public service. Ms. Yau graduated Phi Beta Kappa with a B.A. in Mathematics from the University of Virginia. Ms. Yau was also selected as an Echols Scholar and awarded the Student Council Scholarship for leadership, academic achievement and community service.