News

News – Judge Fischer Rules Against UPMC’s Motion for Summary Judgment in Employment Discrimination Lawsuit

October 9, 2018.  U.S. District Judge Nora Barry Fischer issued a Memorandum Opinion denying UPMC’s motion for summary judgment.

FDPK’s client, Heidi Surman, a former technology director with the University of Pittsburgh Medical Center, will move forward with her employment discrimination case against UPMC.  Judge Fischer’s Opinion denying summary judgment stated that “UPMC had no written guidelines for conducting HR Investigations” and “did not follow best practices” in investigating Ms. Surman’s complaint of gender discrimination and retaliation.

Ms. Surman is represented by FDPK Attorneys Elizabeth Rabenold, Pamina Ewing, Edward Feinstein and Ruairi McDonnell.

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News – Society of Professional Engineering Employees in Aerospace et al. v. Boeing Co., et al. (U.S.D.C. Kansas 6:05-cv-01251)

July 20, 2018.  U.S. District Judge John W. Broomes’ Memorandum and Order denied Boeing’s motion for summary judgment and ruled against Boeing on its motion to resolve claims in five separate trials.  Judge Broomes stated that separating the cases into five separate trials would “result in a significant burden in terms of litigation costs and delay of this case, which has already been delayed significantly.”

This retiree benefits case was brought in 2005 following the sale of Boeing’s Wichita, Kansas plant when workers who had lost their jobs were classified as “resigned” instead of “laid off”, preventing them from collecting early retirement pension and health care benefits.  The workers are represented by Tom E. Hammond of Hammond Zongker & Farris LLC; Arlus J. Stephens, Rachel L. Capler, and Roseann R. Romano of Murphy Anderson PLLC; and FDPK attorneys Bill Payne and Joel Hurt.

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News – Wyatt Lison Sworn in as California Attorney

Feinstein Doyle Payne & Kravec, LLC is pleased to announce that Wyatt Lison was admitted to the State Bar of California on Friday, December 1, 2017.

Mr. Lison joined the firm in January 2011, and has spent his legal career representing individuals and corporations in complex and class action cases.

Wyatt graduated from the University of Pittsburgh School of Law in 2002, and was admitted to practice law before the Supreme Court of Pennsylvania on December 12, 2002.  He is also admitted to the United States Court of Appeals for the Second and Ninth Circuits, and the United States District Court for the Western District of Pennsylvania.

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News — Bloomberg BNA

August 29, 2017 – “Gerdau Reaches $16M Deal With Retirees Over Health-Care Cuts”

Bloomberg BNA (Carmen Castro-Pagan) reported on the August 25 filing of Plaintiffs’ Memorandum in Support of Final Approval of Settlement.  Gerdau Ameristeel US Inc. agreed to pay more than $16 million to retirees affected by the company’s 2013 decision to cut healthcare benefits (Comer v. Gerdau Ameristeel US, Inc., M.D. Fla., No. 8:14-cv-00607-SDM-EAJ).

FDPK attorneys Joel Hurt, Bill Payne, Ruairi McDonnell and Pamina Ewing and Sugarman & Susskind, P.A. attorneys Ivelisse Berio LeBeau and Robert Sugarman represent the retirees.

Click here to read Carmen Castro-Pagan’s Article: Gerdau Reaches $16M Deal With Retirees Over Health-Care Cuts

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News — IndeOnline.com

August 2, 2017 – “Hoover Co. retirees prevail in lengthy health care lawsuit”

IndeOnline.com (Ed Balint CantonRep.com staff writer) reported on the July 27 ruling by Judge Benita Y. Pearson denying a request by Whirlpool Corp. to overturn her previous ruling following a bench trial.  This ruling gives Whirlpool retirees a victory in their pursuit of company provided retiree health benefits (Zino v. Whirlpool Corp., N. D. Ohio., No. 5:11-cv-01676-BYP.)

Click here to read Mr. Balint’s Article:  Hoover Co. retirees prevail in lengthy health care lawsuit

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News — Pennsylvania Bar Association Honors Larry Frolik

August 9, 2017.  Lawrence A. Frolik, Of Counsel with Feinstein Doyle Payne & Kravec, LLC and one of the founders of the field of Elder Law, received the Excellence in Elder Law Award from the Pennsylvania Bar Association Elder Law Section at the 10th Annual Elder Law Institute held on July 20-21, 2017 in Harrisburg, PA.

The award recognizes an individual who has made superior efforts in the field of Elder Law, significant contributions to the elder law bar, and substantial service to the elderly. According to the PBA Press Release, Larry was selected for being “a vocal and active advocate for seniors and individuals with disabilities and his invaluable contributions to elder law, both in Pennsylvania and nationally.”

Click here to review the PBA Press Release:  PBA Honors Founder of Field of Elder Law with Excellence in Elder Law Award

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News — Bloomberg BNA

July 27, 2017 – “Whirlpool’s Retiree Health Benefit Cuts Go Down the Drain”

Bloomberg BNA (Jacklyn Wille) reported on the July 27 ruling giving Whirlpool retirees a victory in their pursuit of company provided retiree health benefits (Zino v. Whirlpool Corp., N. D. Ohio., No. 5:11-cv-01676-BYP.)

In her ruling, Judge Benita Pearson rejected the company’s modification to retiree health benefits (raising premiums, deductibles, and other cost-sharing requirements).  The opinion explained that the parties to the relevant collective bargaining agreements could not have intended to give Whirlpool the freedom to make these changes because the agreements established specific premiums and deductibles but did not provide a means to alter them.

In addition to stopping Whirlpool’s proposed benefit cuts, the Judge also ordered the company to reimburse retirees for out-of-pocket costs they paid as a result of the benefit cuts.

The retirees are represented by Pamina Ewing, Joel Hurt, and Ruairi McDonnell of FDPK and Brian L. Zimmerman of B. Zimmerman Law.

Click here to read Ms. Wille’s Article:  Whirlpool’s Retiree Health Benefit Cuts Go Down the Drain

Memorandum of Opinion and Order

Findings of Fact and Conclusions of Law

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News — Bloomberg BNA

June 15, 2017 – “Ampco-Pittsburgh Retiree Health Cuts Will Be Arbitrated”

Bloomberg BNA (Jacklyn Wille) reported on the June 13 ruling granting the United Steelworkers’ motion to compel arbitration in Cup v. Ampco-Pittsburgh, Corp., W.D. Pa., No. 2:17-cv-00189-AJS.

The lawsuit claims that the steel manufacturer dropped certain retirees from its health plan and intended to give them a “limited monthly reimbursement” so they could buy private insurance, which the Steelworkers believe violates a 2015 agreement between the parties.

The retirees are represented by Pamina Ewing, Joel Hurt, and Ruairi McDonnell of Feinstein Doyle Payne & Kravec, and Nathan Kilbert of the USW.

Click here to read Ms. Wille’s Article:  Ampco-Pittsburgh Retiree Health Cuts Will Be Arbitrated.

Click here to read the June 13 Memorandum Opinion:  Cup v. Ampco Memorandum Opinion

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News — Ellen Doyle Honored with Carol Los Mansmann Helping Hand Award

May 23, 2017.  Ellen Doyle was pleased to be honored as the recipient of the Carol Los Mansmann Helping Hand Award at the annual meeting of the ACBA Women in the Law Division.

Judge Los Mansmann was the first female prosecutor in Allegheny County to try a first degree murder case and the first woman to be appointed to the federal bench in Pittsburgh. The award is presented to an individual who is dedicated to advancing and improving female lawyers’ roles in the legal profession.

Click here to review the Allegheny County Bar Association Lawyers Journal article (Madelyn Dinnerstein) about this well-deserved award:  WLD Honors Doyle with Los Mansmann Award

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News — American Bar Association

March 2017 – Employment Rights and Responsibilities Committee Midwinter Meeting

Joel Hurt participated in a panel discussion entitled “The Fiduciary Rule: What Employers, Employees, Plans and Service Providers Need to Know” presented at the Employee Benefits Subcommittee’s Midwinter Meeting held in Puerto Vallarta, Mexico.

Fellow panelists of the March 23 program were J. Timothy McDonald of Thompson Hine LLP (Atlanta, GA); Bert M. Carmody of MilleniuM Investment Advisors, LLC (Atlanta, GA); and Susan J. Martin of Martin & Bonnett PLLC (Phoenix, AZ).

The Department of Labor released the fiduciary rule under ERISA in April 2016, to become effective April 2017. Employers, employees, plan sponsors, fiduciaries, plan consultants and advisors need to understand the impact of the new regulatory structure to remain compliant with ERISA. The panel presented the aspects of the rule that are of most interest to employers and employees, including how to avoid potential pitfalls, and how to ensure compliance.

News — Bloomberg BNA

March 23, 2017 – “The Scales of Justice Tilt”

This firm’s attorneys work hard to fight for the rights of employees and retirees.  Ann McKenna Fromm, an award-winning writer from Pittsburgh, wrote an article on her blog about the lawsuit Bill Payne filed in 1996 on behalf of approximately 8,000 Disney retirees and future retirees.  After five years the case was settled for about $101 million of lifetime healthcare benefits for those workers.

Click here to read Ann’s article:  http://annfromm.com/what-does-bill-do/

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News — American Bar Association

February 2017 – Employee Benefits Committee Midwinter Meeting

Joel Hurt participated in a panel discussion entitled “Retiree Health Claims after Tackett” at the Employee Benefits Committee’s Midwinter Meeting held in Las Vegas, Nevada.

Fellow panelists of the program, held on February 13, 2017, were Theresa Gee of Miller & Chevalier Chartered (Washington, DC); Jeffrey Heller of BP America, Inc. (Houston, TX); William Kinney of Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich (Chicago, IL); Radha Pathak of Stris & Maher LLP (Los Angeles, CA); and Joanne Roskey of the U.S. Department of Labor (Washington, DC).

 

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News — Bloomberg BNA

Feb. 13, 2017- Century Aluminum Inks $23M Deal with WV Retirees

Bloomberg BNA (Jacklyn Wille) reported on the February 9 filing of a motion for preliminary settlement approval filed in Dewhurst v. Century Aluminum Co., S.D. W.Va., No. 2:09-cv-01546.  The lawsuit challenged Century Aluminum’s 2009 decision to eliminate or severely reduce the health benefits of retirees. The settlement, subject to approval by the U.S. District Court for the Southern District of West Virginia, requires Century to pay $23 million into a trust fund providing health benefits to the retirees.

The retirees are represented by Pyles Haviland Turner & Smith, Feinstein Doyle Payne & Kravec, and the USW.

Click here to review the BNA article:  Dewhurst v. Century

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News — Larry Frolik’s Article “Trust Protectors:  Why They Have Become The Next Big Thing” Quoted in Florida Probate & Trust Litigation Blog

Larry Frolik’s article entitled “Trust Protectors: Why They Have Become “The Next Big Thing” was cited by Juan Antunez of Stokes McMillan Antunez, P.A. in a recent blog post.

Antunez’s post discusses basic questions that may arise when you name a trust protector (someone you give power over a trust that can make decisions without seeking court approval). Since using trust protectors is a recent trend, courts have not addressed fundamental questions regarding their responsibilities.

Mr. Antunez’s blog states that the most important question is “whether trust protectors assume the same fiduciary duties as trustees, or no fiduciary duties at all, or something in between.” He calls Larry’s argument for a  middle of the road “good faith” standard of care “the best answer” he’s seen, concluding “a trust protector isn’t subject to all the duties of a trustee, but he doesn’t get a free pass either.”

Larry Frolik is a Distinguished Faculty Scholar and Professor of Law at the University of Pittsburgh School of Law.  A nationally known expert on the legal issues of the elderly, he currently serves on the Pennsylvania Supreme Court’s Advisory Council on Elder Justice in the Courts.  Contact Larry Frolik or Ellen Doyle if you suspect that your parent or loved one may be a victim of financial abuse.

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News — Ellen Doyle and Carol S. Mills McCarthy Receive Special Merit Award

May 24, 2016.  FDPK’s Ellen Doyle and Carol S. Mills McCarthy of McCarthy McDonald Schulberg & Joy were pleased to receive a special merit honor at the ACBA Women in the Law Division Annual Meeting.

The event honored Krysia Kubiak with the Carol Los Mansmann Helping Hand Award. The award honors the legacy of Carol Los Mansmann, who was the first woman appointed to the federal branch in Pittsburgh (she was sworn in by Supreme Court Justice Sandra Day O’Connor) and the youngest woman to argue before the U.S. Supreme Court.  The award recognizes local individuals who have made extraordinary efforts to assist and to mentor young women in the legal profession.

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News — Bloomberg BNA

April 14, 2016 – Briggs & Stratton Settles Retiree Class Action for $3.95M

Bloomberg BNA (Jacklyn Wille) reported on the April 12 filing of Plaintiffs’ motion for preliminary approval of settlement in the Merrill, et al. v. Briggs & Stratton Corp. union retiree benefits class action (E.D. Wis., No. 2:10-cv-00700-LA).

Under the terms of the settlement Briggs & Stratton promised to continue the retirees’ medical, vision and dental benefits.  FDPK attorneys Ellen Doyle, Bill Payne and Joel Hurt represented the retirees along with Marianne Robbins and Nathan Eisenberg of The Previant Law Firm, S.C.

Click here to review the BNA article:  Briggs Settlement

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News — Bloomberg BNA

January 4, 2016 – Whirlpool Retirees’ Benefits Revised for Third Time

Bloomberg BNA (Jacklyn Wille) reported on the December 31, 2015 ruling by Judge Benita Y. Pearson of the Northern District of Ohio that awarded lifetime health-care benefits to a subclass of former Whirlpool Corp. workers who retired between 1983 and 1992 (Zino v. Whirlpool Corp., 2015 BL 358768, N.D. Ohio, No. 5-11-cv-01676, 12/31/15).

Click here to review the Decision:  373-00 Order Granting Reconsideration

Click here to review the complete article:  BNA : Zino v Whirlpool

Bill Payne, Pamina Ewing and Joel Hurt represent the retirees, along with Brian L. Zimmerman of Canton, Ohio.

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November 2, 2015 – Whirlpool Retirees’ Benefits Revised Under Tackett

Bloomberg BNA (Carmen Castro-Pagan) reported on the October 30, 2015 ruling by Judge Benita Y. Pearson of the Northern District of Ohio (Zino v. Whirlpool Corp., 2015 BL 358768, N.D. Ohio, No. 5-11-cv-01676, 10/30/15).

Judge Pearson’s ruling applies the recent Supreme Court decision in M&G Polymers USA, LLC v. Tackett and rejects the argument that any intent to vest retiree health benefits must be stated in “clear and express” language in the CBA.

Bill Payne, Pamina Ewing and Joel Hurt represent the retirees, along with Brian L. Zimmerman of Canton, Ohio.

Click here to review the complete article:  BNA Whirlpool Retirees’ Benefits Revised Under Tackett

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News — Pennsylvania Bar Association — At Issue

September 29, 2015.  Sarah Martin, an associate with FDPK since October 2013, was pleased to author an article for the Fall 2015 At Issue, the Pennsylvania Bar Association’s Young Lawyers Division newsletter.

Click here to review Sarah’s Article regarding a recent Third Circuit Decision about the definition of “overnight” under the FMLA.

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News — Bloomberg BNA

FreightCar Reaches $33M Settlement with Retirees

September 25, 2015 – Bloomberg BNA reported that settlement papers were filed September 21 for the lawsuit brought by retirees of FreightCar America, Inc.  The lawsuit centered on whether the company was required to provide vested retiree benefits based on a 1991 side letter it had executed with the United Steelworkers in 1991.  The retirees are represented by William Payne, Pamina Ewing and Joel Hurt.

Click here to read the complete article: FreightCar Settlement

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News — FDPK Partners Participate in Point/Counterpoint Discussion for the ABA Section of Labor and Employment Law Spring 2015 Employee Benefits Newsletter

May 20, 2015.  Pamina Ewing and Joel Hurt debated M&G Polymers USA, LLC v. Tackett and the significance of the Court’s rejection of UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983) with Michael Alaimo and Brian Schwartz.  The spirited discussion resulted in two separate articles.

Click here to review the Collectively Bargained Retiree Health and the Demise of Yard-Man-Employer’s Perspective presented by Messrs. Alaimo and Schwartz:  http://www.americanbar.org/content/newsletter/groups/labor_law/ebc_newsletter/2015/spr15/page01.html

Click here to review the response by Pamina Ewing and Joel Hurt:  http://www.americanbar.org/content/newsletter/groups/labor_law/ebc_newsletter/2015/spr15/page02.html

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News — Ellen Doyle Interviewed on WESA’s Essential Pittsburgh

May 13, 2015.  Ellen Doyle, one of the attorneys for the Plaintiffs in a federal class action lawsuit between the ACLU of Pennsylvania and the City of Pittsburgh, was interviewed on WESA’s Essential Pittsburgh. Ellen answered questions about the lawsuit and the settlement.  Click here to listen to the interview:  WESA May 13 Interview of Ellen Doyle

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News — ACBA Sidebar – Point of Law (First Edition of The YLD Newsletter)

April 17, 2015.  McKean Evans, an associate with FDPK since January 2012, was pleased to author an article for Point of Law, the Allegheny County Bar Association Young Lawyer Division‘s first newsletter:

“Maintaining Work-Life Balance in the Age of the Email App”

by McKean J. Evans

Today, technology allows work to follow you home from the office in two ways. First, your phone will notify you whenever you receive email. Second, your laptop lets you reach into your office from anywhere with WiFi. This technology can be tremendously helpful for young lawyers because it allows them to work anywhere, anytime. Likewise, it can also pose some challenges. 24/7 connectivity can be overwhelming. Thus, some have called for a total ban on after-hours communication. France recently implemented such a ban,* and the Washington Post reported that, by 2012, one in four companies instituted similar rules.**

For young attorneys, giving up after-hours communication and work is virtually unthinkable. We communicate with clients, witnesses and other attorneys from different time zones operating on disparate schedules. In most jurisdictions, ECF lets you file and receive court documents 24/7. Thus, receiving emails at all hours is simply reality for an attorney. However, swearing off after-hours work and email is not just impractical. It is unnecessary.

Young lawyers can make this technology a helpful tool without being overwhelmed by resisting the urge to be connected 24/7, setting practical boundaries and being disciplined about following those boundaries.

As a young litigation associate who took on greater responsibility over the last year, I had to learn how to strike this balance in my own practice. I originally made the mistake of trying to stay connected 24/7 by reading every email as soon as my phone vibrated and reaching for the laptop as soon as I sat down. This meant that instead of using this technology to be more productive, I actually damaged my productivity. Opening every email the instant I received it meant reading critical correspondence while being unprepared to carefully analyze it and prepare an effective response. I sent responses via phone that I had insufficient time to think through. I also failed to calendar emails requiring future action. The bottom line was reading email while grocery shopping or editing the brief on my laptop as soon as I sat down for five minutes were not effective uses of my time and resources. Furthermore, because I had no mental downtime, not only was I failing to produce quality work but I was exhausting myself doing it.

For me, the key was to find some boundaries I found effective. First, I stopped reading after-hours emails on my phone. I instead committed to waiting until I was able carefully read the email on my computer, reply if I had time, and, if not, record my thoughts and make a note on my calendar to respond later. My co-counsel emailing a question about the brief we were drafting, for instance, would be better supported by an effective response a few hours later than a hasty answer immediately. Anyone who needs to reach me instantaneously can do so with a phone call since my secretary, other attorneys at my firm and my co-counsel at other firms all have my cell number.

Second, I set aside time first thing every morning and right before bed at night to focus specifically on work. In the morning, I read and adequately address my overnight email while reviewing my calendar and to-do list to prepare for the day. At night, I address minor issues and calendar the larger ones for the next day. Since I was not checking emails on my phone, this allowed me to keep up with email and maintain a tidy inbox.

Third, apart from these two blocks of time, I allowed myself some mental downtime. That taking breaks is important to maintaining productivity has been widely reported.*** Giving up checking email on my phone, I realized how much mental energy I had wasted stewing over emails to which I could not respond on my phone anyway. Breaking my mental connection to my phone’s email app was incredibly refreshing. This meant I was better prepared when I got back to work. I produced better quality work and had a better personal life.

Naturally, at times such as trial or deposition or hearing preparation, you simply must be connected 24/7. I have described rules I found effective for me as a general matter. Other attorneys may find different practices ideal.

Technology can be a useful tool for making you more productive, and it can make you exhausted and miserable. Young lawyers can use technology as a helpful tool without it running their lives by resisting the urge to be connected 24/7, setting practical boundaries and being disciplined about following them.
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* Beth Teitell, Late-Hour Work E-Mailing Sends Unsettling Message, Boston Globe, April 17, 2014, http://www.bostonglobe.com/lifestyle/style/2014/04/16/france-moves-ban-late-night-work-emails-but-workers-check-messages-all-night/ZoFJg3FWIuYLnJpgoqYqeN/story.html.

** Celia Kang, After-Hours E-Mail, Companies Are Telling Employees to Avoid It, Washington Post, September 21, 2012, http://www.washingtonpost.com/business/economy/after-hours-e-mail-companies-are-telling-employees-to-avoid-it/2012/09/21/a95f53b2-fdba-11e1-a31e-804fccb658f9_story.html.

***See, e.g., Phyllis Korkki, To Stay on Schedule, Take a Break, New York Times, June 16, 2012, available at http://www.nytimes.com/2012/06/17/jobs/take-breaks-regularly-to-stay-on-schedule-workstation.html?_r=0.

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News — Bloomberg BNA

April 2, 2015 – Retiree Benefit Dispute Heads to Trial

Bloomberg BNA (Jacklyn Wille) reported on the March 30, 2015 ruling by Judge Kim R. Gibson of the Western District of Pennsylvania (Zanghi v. FreightCar Am., Inc., 2015 BL 91263, W.D. Pa., No. 3-13-cv-00146, 3/30/15).

Judge Gibson denied cross-motions for summary judgment and allowed the dispute to proceed to trial.  The retirees are represented by William Payne, Pamina Ewing and Joel Hurt.

Click here to review the Opinion: 2015-03-30 Memorandum Opinion

Click here to read the complete article: BNA FreightCar

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American Bar Association Midwinter Meeting

March 2015

Ellen Doyle participated in the program entitled “Hot Wage and Hour Issues with an ERISA Twist” presented by the Complex Litigation and Employee Benefits Subcommittees at its Midwinter Meeting held in Naples, Florida.  Fellow panelists of the program, held on March 28, 2015, were J. Timothy McDonald of Thompson Hine, LLP of Atlanta, GA (Moderator); Richard L. Alfred of Seyfarth Shaw, LLP of Boston, MA; and R. Scott Oswald of The Employment Law Group of Washington, DC.

Ellen was also a panelist in the program, “Is It All Good? The Legal and Ethical Implications of Legalizing Marijuana in America,” presented by the Ethics and Professional Responsibility Committee Midwinter Meeting on Friday, March 27, 2015.  Other presenters of this program were Ed Harnden of Barran Liebman, LLP of Portland, OR (Moderator); Margaret B. Funk of Colorado Supreme Court Office of Attorney Regulation of Denver, CO; and Devika Kewalramani of Moses & Singer LLP of New York, NY.

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News — Bloomberg BNA

March 19, 2015 – Third Circuit Rules Against United Refining, Ducks Lingering Question of ERISA Deference

Bloomberg BNA (Jacklyn Wille) reported on the March 18, 2015 ruling by the U.S. Court of Appeals for the Third Circuit (Cottillion v. United Ref. Co., 3d Cir., No. 13-4633, 3/18/15).

The Third Circuit found that United Refining had violated ERISA’s anti-cutback rule, which prohibits pension plan amendments that reduce workers’ accrued benefits.  It affirmed the district court decision awarding the retirees unreduced pension benefits, stating that “United must pay the Employees what it promised.”  Tybe Brett and Joel Hurt of FDPK represent the plaintiffs.

Click here to review the Opinion: 2015-03-18 Opinion

Click here to read the complete article: BNA United Refining

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News — Bloomberg BNA

January 27, 2015 – Supreme Court Paves Way for Employers to Reduce Union Retiree Benefits

FDPK Partners Pamina Ewing and Joel Hurt commented on the recent U.S. Supreme Court decision in M&G Polymers USA, LLC v. Tackett, No. 13-1010, slip op. (Jan. 26, 2015), disapproving the standard articulated in United Auto Workers v. Yard-Man Inc., 716 F.2d 1476, 4 EBC 2108 (6th Cir. 1983):

“As expected, the Supreme Court has rejected Yard-Man’s ‘thumb-on-the-scales’ inference in favor of vesting. Rather, the Court has now unanimously ruled, ordinary principles of contract law control, at least when those principles are not inconsistent with federal labor policy. It is now up to the Sixth Circuit to apply the ordinary principles of contract law …. While the final result in Tackett is obviously unknown at this point, we are confident that retirees will frequently prevail when contract law is applied.”

Click here to read the complete article: Supreme Court Paves Way for Employers To Reduce Union Retiree Health Benefits

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News — Bloomberg BNA

November 10, 2014 – FDPK Lawyers Comment On Important Retiree Health Care Supreme Court Argument

On Monday, November 10, 2014, the U.S. Supreme Court heard oral argument regarding the duration of retiree health benefits promised under collective bargaining agreements in M&G Polymers USA, LLC v. Tackett, U.S., No. 13-1010.

FDPK attorneys Bill Payne, Pamina Ewing and Joel Hurt attended the argument. Jacklyn Wille of Bloomberg BNA asked for comments. “The parties were in agreement that basic contract principles should control in retiree health cases, differing on how they should apply. The Court seemed unreceptive to M&G’s argument that the lower court should have ruled against retirees before trial based on the alleged absence of clear and express vesting language. Justice Kagan pointed out that far from imposing any such requirement, ERISA leaves it to the parties to negotiate the terms of their agreement.”

Click here to read the complete article:  BNA Tackett

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News — Bloomberg BNA

November 3, 2014 – 9th Circuit Opinion in Amgen Unsurprising, But Has Unexpected Effects, Experts Say

FDPK Partner Joel Hurt was asked to comment on the October 30 decision by the U.S. Court of Appeals for the Ninth Circuit in Harris v. Amgen, Inc., 2014 BL 306929, 9th Cir., No. 10-56014, 10/30/14. The Court ruled that the fiduciaries had breached their duties of care and loyalty in allowing the plans to continue to offer stock even though the company had suffered a financial downturn.

Click here to read Joel’s remarks:  BNA Amgen

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November 3, 2014 – Retiree Health Benefit Dispute Draws Multiple Briefs, Including ‘True’ Amicus Brief

Jacklyn Wille of Bloomberg BNA reported on an amicus brief filed by a Bethesda, MD law firm in M&G Polymers USA, LLC v. Tackett, U.S., No. 13-1010. The Bethesda law firm claims that their amicus brief does not support either party and was intended to be informational.  The U.S. Supreme Court will hear argument on this matter on November 10, 2014.

Ms. Wille invited FDPK’s Bill Payne to comment:  BNA MG Polymers

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News — Legal Newsline

October 20, 2014 – Retiree Says FirstEnergy Violated Labor Contracts

A retiree, represented by FDPK lawyers Bill Payne, Tybe Brett and Joel Hurt, recently filed a class action lawsuit against FirstEnergy in the U.S. District Court for the Northern District of Ohio in an attempt to stop the company from terminating its retiree health benefits at the end of the year. FirstEnergy announced July 1, 2014 that it would discontinue company-subsidized healthcare for all retirees or their surviving spouses and would no longer make contributions for health insurance premiums or health reimbursement accounts after December 31, 2014.  Marianne Oliver of Gilardi, Oliver & Lomupo also represents the Plaintiff.

Click here to review the Legal Newsline article:  Legal Newsline

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News — Bloomberg BNA

September 22, 2014 – Whirlpool Retiree Health Benefits Vested, District Court Rules After Bench Trial

On Friday, September 19, 2014, Judge Benita Pearson of the U.S. District Court for the Northern District of Ohio issued her ruling in Zino v. Whirlpool Corporation. Following a five-day bench trial last November, Judge Pearson concluded that more than 2,000  retired workers of the Hoover Company were promised lifetime company-paid retiree health care benefits.

Click here to review the complete article, PBD, 9/22/14:  Zino v. Whirlpool Decision

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Jacklyn Wille of Bloomberg BNA invited attorneys who represent plan participants, plan sponsors and industry groups to reflect on some of the most significant court decisions decided under ERISA over the past 40 years.  Tybe Brett, Of Counsel to FDPK, was pleased to participate in this discussion.  (Item 10.  Metropolitan Life Insurance Company v. Glenn)

Tybe commented that Glenn injected fresh air into the debate regarding the consideration courts should apply in reviewing adverse decisions of insurers of welfare benefit plans.  This decision recognizes that a benefits determination by an insurer is a fiduciary act in which the insurer owes a special duty of loyalty to the participant which requires a ‘higher-than-marketplace-quality’ standard on insurers’ of benefit plans.

Tybe concluded that, while insurers continue to deny meritorious benefits claims by selective review of the records submitted by the participant and biased reviews by consultants, Glenn provides better tools to participants to overturn standardless decision making.

Click here to review the complete article published in Pension & Benefits Daily, 174 PBD, 9/9/14:  ERISA at 40

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Matthew Loughran examined the origins of the exhaustion of remedies requirement under ERISA, how the requirement evolved and the issues that remain.  He discussed this with management lawyers who support the judicially imposed exhaustion requirement. He also spoke with Bill Payne.

Bill told Mr. Loughran that he sees the exhaustion requirement as a roadblock to proper adjudication of employee benefit cases.  “You have this idea that the plans have the right to require you to do anything that they want, he said.  “I mean, Section 503 sets forth only a specific procedure, why do you need to shoehorn an additional mandatory exhaustion requirement into it?”  Bill added, “I think that you have a lot of judges that don’t like the cases and want to throw as many roadblocks up as possible to stop the cases from coming to them.”

Click here to review the complete article published in Pension & Benefits Daily, BNA 9-9-14:  The Exhaustion of Administrative Remedies: A Nonstatury Pillar of ERISA Litigation

American Bar Association Annual Meeting

August 2014

 

Ellen Doyle participated in the program entitled “Affordable Care Act:  Current and Anticipated Growing Pains” presented by the American Bar Association at its Annual Meeting in Boston, MA.  Fellow panelists of the program, held on August 8, 2014, were Howard Shapiro of Proskauer Rose LLP; Mary Ellen Signorille of AARP Foundation Litigation; and Erin Sweeney of Dickstein Shapiro, LLP.

Panelists addressed the litigation, challenging the constitutionality of the Affordable Care Act (“ACA”), which lost in the Supreme Court; the successful challenge to the contraceptive mandate contained in ACA, which was brought by privately held for-profit companies owned by persons who oppose some or all forms of contraception, and whose right not to provide such benefits to women of child-bearing age, the Supreme Court found to be protected by the Religious Freedom Restoration Act; and the likelihood that the Supreme Court will have to resolve next term the conflict between the Circuit Courts regarding whether individual tax subsidies under ACA are available only under state health exchanges and not to persons in federal health exchanges which are provided to those whose states have not participated in setting up health exchanges.

News — Bloomberg BNA

June 2014

Ellen Doyle was interviewed by Jacklyn Wille of Bloomberg BNA regarding the U.S. Supreme Court’s unanimous June 25 ruling that fiduciaries (a person or institution given the power to act on behalf of another) of employee stock ownership plans are not entitled to a presumption of prudence that would protect them from liability for declining share price (Fifth Third Bancorp v. Dudenhoeffer, 2014 BL 175777, U.S., No. 12-751, 6/25/14).

“Employer Stock:  High Court Kills Presumption of Prudence, Gives Some Hope to ESOP Fiduciaries”: June 25 2014 Bloomberg BNA – Fifth Third v Dudenhoeffer

Click here to review Opinion: Fifth Third Bancorp v. Dudenhoeffer Opinion

Click here to review Syllabus: Fifth Third Bancorp v. Dudenhoeffer Syllabus

May 2014

Bill Payne was interviewed by Jacklyn Wille regarding the U.S.Supreme Court’s announcement that it will take up the issue of retiree health-care benefits next term.  “Retiree Benefits:  U.S. Supreme Court Will Consider Inference In Favor of Vested Retiree Health Benefits”:  2014 May Bloomberg BNA Article

February 2014

Bill Payne was interviewed by Andrea L. Ben-Yosef of Bloomberg BNA about employee benefits litigation: ERISA Litigation Tracker Q&A: “William T. Payne Says Many Court Decisions Over the Past 25 Years Have Harmed Participants (February 26, 2014)

April 2014 –

Pamina Ewing was interviewed by Matthew Loughran of Bloomberg BNA regarding an April 22, 2014 ruling in Steelworkers v Kelsey-Hayes Co. (6th Cir. No. 13-1717) “Retiree Benefits:  Sixth Circuit Clarifies Its Stance on Vesting, Rejects Unilateral Changes to Benefits”:  2014 Bloomberg BNA Article

News — Post-Gazette “Seen”

May 2014  – Ellen Doyle participated in the Women’s Law Project annual fundraiser at the Pittsburgh Fairmont Hotel on Friday, May 9, 2014. The Women’s Law Project is a nonprofit legal advocacy organization and is one of five state-based organizations in the United States.  Ellen serves as the Vice-Chair of the Board of the Women’s Law Project, an organization advocating for gender equality, non-discrimination on the basis of sexual identity, and reproductive rights.

Click here to review recent firm newsletters:

• 2014 New Year’s Newsletter
• 2013 Labor Day Newsletter
• 2013 New Year’s Newsletter
• 2012 Labor Day Newsletter

International, national and Pittsburgh news outlets frequently report on cases handled by FDPK lawyers. Some of the firm’s cases have been featured in the news media, including The Wall Street Journal, New York Times, Readers Digest, USA Today, Philadelphia Inquirer, Cleveland Plain Dealer, Denver Post, Detroit Free Press, Detroit News, Pittsburgh Post-Gazette, Pittsburgh Business Times, Pittsburgh Tribune Review, and the Pittsburgh City Paper. FDPK lawyers have been interviewed by local radio and television news stations and have appeared on Oprah, National Public Radio’s Weekend Edition and The Al Franken Show.