New Frontiers in ERISA Litigation: Cunningham’s Impact, Class Action Trends, and Fiduciary Defense Strategies
2.5 hour CLE
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Program Summary
Session I - New Defense and Plaintiff Frontiers in ERISA Litigation: Lessons from Cunningham and Beyond – William Nelson
This session will explore the evolving landscape of ERISA litigation, with a focus on the key lessons learned from the landmark Cunningham case and its broader implications for future cases. We will discuss the impact of recent judicial decisions on plan fiduciaries, including emerging trends in breach of fiduciary duty claims and their regulatory consequences.
The session will also examine upcoming legislative efforts that could significantly impact ERISA litigation, including proposed bills that aim to modify plan sponsor responsibilities and expand participant rights. Additionally, we will offer practical guidance on compliance and risk management, helping stakeholders navigate the increasingly complex ERISA litigation environment.
Key topics to be discussed:
- The impact of the Cunningham decision on future ERISA fiduciary duty cases
- Trends in breach of fiduciary duty claims and their potential regulatory consequences
- Legislative developments that could reshape ERISA litigation, including proposed reforms to plan sponsor obligations and participant rights
- Practical strategies for compliance and risk management in the face of changing litigation dynamics
Session II - The Aftermath of Cunningham v. Cornell University: Balancing Plaintiff Strategies and Fiduciary Defenses – Barry Salkin and Andrew Oringer
The unanimous decision by the Supreme Court in Cunningham v. Cornell University which resolved a three-way Circuit split as to the appropriate pleading standard under ERISA to establish a prohibited transaction for entering into transaction with a service provider to a plan has led to a concern that the Decision will encourage meritless litigation because the action cannot be dismissed at the motion to dismiss stage. The Decision may require plan fiduciaries dealing with service providers, to modify the manner in which they review the relationship.
It remains to be seen the extent to which District Courts will take the action recommended by the Supreme Court as a guardrail under Section 7 of the Federal Rules of Civil Procedure, which will require plaintiffs to reply to the affirmative defense of defendants. If there is an increase in litigation of a questionable nature, Congress may be asked to amend ERISA. This session examines the broader implications of this decision from both plaintiff and defense perspectives.
Key topics to be discussed:
- Was the decision in Cunningham v. Cornell University what congress envisioned in 1974?
- Actions plan fiduciaries should take in response to the decision
- Effect upon future ERISA litigation
- Potential guardrails to discourage frivolous litigation
Session III – New Frontiers in ERISA Litigation: Key Trends in Class Action Filings, Rulings, and Defense Strategies – Gerald L. Maatman, Jr.
The surge of class action litigation filed under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001 et seq., over the last decade has persisted in the past 12 months. Class action litigators in the plaintiffs’ bar continuing to focus on challenges to ERISA fiduciaries’ management of 401(k) and other retirement plans.
There were several important developments in the ERISA class action space in the last year. For example, 2024 witnessed the emergence of a novel variety of claims centered on allegations that fiduciaries have misused employer contributions to 401(k) plans that were forfeited by former employees. Plaintiffs have argued that forfeited funds should be used to reduce workers’ administrative expenses rather than benefiting plan sponsors. Likewise, 2024 witnessed the first shots in what may be a coming battle over the propriety of environmentally and socially conscious investments by ERISA fiduciaries.
Because plaintiffs in ERISA cases frequently allege that defendants violated the law through actions that impacted large numbers of plan participants in similar ways, class certification is frequently easy to achieve for the plaintiffs. This past year courts also issued conflicting decisions on the enforceability of mandatory arbitration and class action waiver provisions with respect to ERISA claims.
Join experienced class action defense litigator Gerald L. Maatman, Jr. for a high-level breakdown of the developments in the ERISA class action space.
Key topics to be discussed:
- Key trends in ERISA class actions
- Notable rulings in ERISA litigation
- Best practices
Session IV - Cunningham in Context: Case Scenarios Before and After the Ruling – Joseph C. Faucher
What set the stage for Cunningham v. Cornell? This session will discuss prohibited transaction litigation before the Supreme Court’s recent decision, why some courts struggled with the concept of what plaintiffs needed to plead, and why the specific type of case often drove the outcome. Looking ahead, this session will also attempt to “read the tea leaves” about whether ERISA litigation is likely to change in the decade ahead.
Key topics to be discussed:
- Pre-Cunningham prohibited transaction claims in excessive fee cases
- Pre-Cunningham prohibited transaction claims in ESOP cases
- Are plaintiffs’ attorneys likely to “strip-down” their complaints at the outset, and amend to state broader fiduciary breach claims as cases proceed?
This course is co-sponsored with myLawCLE.
Date / Time: August 27, 2025
- 1:00 pm – 3:50 pm Eastern
- 12:00 pm – 2:50 pm Central
- 11:00 am – 1:50 pm Mountain
- 10:00 am – 12:50 pm Pacific
Closed-captioning available
Speakers
William Nelson | Investment Adviser Association
William Nelson is the Public Policy Director and Associate General Counsel at the Investment Adviser Association (IAA). For more than 85 years, the IAA has been advocating for advisers before Congress and U.S. and global regulators, promoting best practices and providing education and resources to empower investment advisers to serve their clients. The IAA’s member firms manage more than $35 trillion in assets for a wide variety of individual and institutional clients.
Prior to joining the IAA, William served as Chief Compliance Officer for Mercer Advisors, one of the largest independent SEC-registered investment advisers in the US, where he served as the subject matter expert on all legal and regulatory compliance issues.
William previously served as Assistant General Counsel and Public Policy Counsel for CFP Board and has held multiple roles as an attorney with both the U.S. Departments of Justice and Veterans Affairs. He currently serves as an Adjunct Professor at the University of Denver Sturm College of Law, teaching securities law, previously taught at George Washington University Law School, currently serves as Chair for the DC Bar’s Corporation, Finance and Securities Law Community, and serves as a member of the North American Securities Administrators Association’s (NASAA’s) Senior Issues Advisory Committee.
William is regularly invited to speak at industry events, has been published in several scholarly and peer-reviewed journals, and his work has been cited in legal treatises and state and federal court decisions. He received his undergraduate degree from the University of Tulsa, his JD with Honors from the University of Tulsa College of Law, and his LLM from the George Washington University Law School.
Joseph C. Faucher | Trucker Huss
Joe Faucher has been litigating ERISA matters and other employee benefit related cases for more than 30 years. He is a fellow of the American College of Employee Benefits Counsel, the highest level of recognition for an ERISA attorney. 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, as well as cases targeting fiduciaries of multiemployer pension 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.
Joe 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.
Andrew L. Oringer | The Wagner Law Group
Andrew L. Oringer is a partner in and General Counsel of The Wagner Law Group, and head of its New York office. He is a past co-chair of the Employee Benefits Committee of the American Bar Association’s Business Section, Emerging Issues Coordinator of the Employee Benefits Committee of the American Bar Association’s Section of Taxation, a past chair and the current vice-chair of the New York State Bar Association Committee on Attorney Professionalism and a member of the NYSBA’s Committee on Professional Ethics.
Mr. Oringer is a charter member of the Practical Law Employee Benefits and Executive Compensation Advisory Board and was a long-standing member of the Advisory Board for the Bloomberg BNA Benefits Resource Practice Center and for the Tax Management Compensation Planning Journal. He is a Fellow of the American College of Employee Benefits Counsel and an adjunct professor at the Fordham University School of Law and the Maurice A. Deane Law School at Hofstra University.
He is editor of a leading comprehensive ERISA treatise, author of an Answer Book on welfare benefits and co-editor of a leading treatise on ERISA fiduciary law, and has authored a chapter in a leading treatise on the taxation of nonqualified deferred compensation.
Mr. Oringer is highly rated by a number of key ranking organizations, has been repeatedly included in a widely disseminated list of the Top 100 lawyers in New York City across all practice areas and is a member of The Legal 500 Hall of Fame.
Barry Salkin | The Wagner Law Group
Barry Salkin concentrates his practice in ERISA and employee benefits law. He has significant expertise drafting, amending and negotiating various ERISA and employee benefit plans, including defined benefit pension plans, profit sharing plans, 401(k) plans, as well as qualified and non-qualified deferred compensation programs. He also has wide-ranging experience crafting group medical and health plans involving Health Care Reform, HIPAA, and COBRA.
In addition, he has represented clients in ERISA litigation and audits. He is co-author of the IRA Answer Book and an editor of the Journal of Pension Planning and Compliance, and the Benefits Law Journal. He is also a member of the American College of Employee Benefits Counsel.
Prior to joining The Wagner Law Group, Barry served as counsel and senior attorney at leading law firms in Manhattan.
Gerald L. Maatman, Jr. | Duane Morris LLP
Gerald L. Maatman, Jr. is a Chambers-recognized workplace class action defense litigator, an eight-time Law 360 Employment Law MVP, nine-time recipient of BTI Consulting Group’s distinguished Client Service All-Star Award, and a 2021 Legal 500 Hall of Fame inductee.
Jerry is a Partner at Duane Morris LLP, where he chairs the firm’s Class Action Defense Group. Among his various cases, Jerry successfully defended the largest EEOC pattern or practice lawsuit ever prosecuted in the history of the Commission, the largest age discrimination collective action ever brought in Illinois, the first sexual harassment class action brought by a State Attorney General in the United States, and the largest wage & hour class actions ever litigated in Florida, Illinois, and New York. A graduate of Washington & Lee University and the Northwestern University School of Law, where he has served as an adjunct professor for 35 years, Jerry is based out of Duane Morris’ Chicago and New York offices.
The author of eight books on the law, Jerry is often consulted by major news organizations for his views on significant court rulings and legal issues. He has served as a legal commentator on the Public Broadcasting System (PBS), National Public Radio (NPR), MSNBC, CNBC, and USA Talk Radio, and his comments have appeared in such publications as The Wall Street Journal, The Economist, Business Insurance, USA Today, Fortune, and Forbes. In 2023, Business Today included Jerry in its rankings of the Top 8 Most Influential Labor & Employment Lawyers in the United States.
Further, Chambers selected him as one of the leading class action defense lawyers in its 2006 to 2025 rankings of U.S. lawyers. In its Global rankings, Chambers stated that “Maatman is absolutely phenomenal,” and is “one of the top-class action minds in the country.”
Agenda
Session I – New Frontiers in ERISA Litigation: Lessons from Cunningham and Beyond | 1:00pm – 1:45pm
- The impact of the Cunningham decision on future ERISA fiduciary duty cases
- Trends in breach of fiduciary duty claims and their potential regulatory consequences
- Legislative developments that could reshape ERISA litigation, including proposed reforms to plan sponsor obligations and participant rights
- Practical strategies for compliance and risk management in the face of changing litigation dynamics
Break | 1:45pm – 1:55pm
Session II – The Aftermath of Cunningham v. Cornell University: Balancing Plaintiff Strategies and Fiduciary Defenses | 1:55pm – 2:40pm
- Was the Decision in Cunningham v. Cornell University what Congress envisioned in 1974?
- Actions plan fiduciaries should take in response to the decision
- Effect upon future ERISA litigation
- Potential guardrails to discourage frivolous litigation
Break | 2:40pm – 2:50pm
Session III – New Frontiers in ERISA Litigation: Key Trends in Class Action Filings, Rulings, and Defense Strategies | 2:50pm – 3:20pm
- Key trends in ERISA class actions
- Notable rulings in ERISA litigation
- Class certification
- Motions to dismiss
- ESG practices
- U.S. Supreme Court ruling in Cunningham v. Cornell University
- Best practices
Session IV – Cunningham in Context: Case Scenarios Before and After the Ruling | 3:20pm – 3:50pm
- Pre-Cunningham prohibited transaction claims in excessive fee cases
- Pre-Cunningham prohibited transaction claims in ESOP cases
- Are plaintiffs’ attorneys likely to “strip-down” their complaints at the outset, and amend to state broader fiduciary breach claims as cases proceed?
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