ERISA Counsel's Communications with Plan Fiduciaries Post ...

ERISA Counsel's Communications with Plan Fiduciaries Post-Jicarilla Navigating the Fiduciary Exception to Attorney-Client Privilege to Prevent Disclosure of Counsel Advice to Plan Participants

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THURSDAY, APRIL 12, 2012

Presenting a live 90-minute webinar with interactive Q&A

James P. McElligott, Partner, McGuireWoods, Richmond, Va.

Ronald S. Kravitz, Partner, Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor, San Francisco

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ERISA Fiduciary Exception to the Attorney-Client Privilege

Thursday, April 12, 2012

Ronald S. Kravitz Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor LLP 199 Fremont Street, 20th Floor San Francisco, CA 94105 (415) 489-7761 [email protected]

James P. McElligott, Jr. McGuireWoods LLP One James Center 901 East Cary Street Richmond, Virginia 23219 (804) 775-4329 [email protected]

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Overview

• The law of attorney client privilege, work product, waiver, and the fiduciary exception form a complex and still developing area of the law

• A substantial body of case law has developed, some of which is in conflict and much of which is not settled

• This presentation outlines the basic rules, but doesn’t attempt to discuss all the cases or issues

Supreme Court Questions Fiduciary Exception

• In a non-ERISA case, United States v. Jicarilla Apache Nation, 131 S. Ct. 2313 (2011), the questioned whether the fiduciary exception was proper.

• Jicarilla Apache Nation ultimately held that fiduciary exception to attorney client privilege (if it exists) does not apply to trust relationship between the United States and Indian tribes.

• Court cited several ERISA cases discussing the privilege and fiduciary exception and took a narrow view of the fiduciary exception.

• Court stressed the importance of confidentiality so that the trustee receives good legal advice.

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DOL Obtains Privileged Documents Under Fiduciary Exception

• Solis v. Food Employers Labor Relations Assoc., 644 F.3d 221 (4th Cir. 2011). Fiduciary exception applied when DOL sought documents in general audit.

• “In the context of the Secretary's investigative or enforcement activity under ERISA, however, the concerns that inspired the good cause requirement in the corporate context do not obtain…”

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The Attorney-Client Privilege • Upjohn Co. v United States, 449 U.S. 383 (1981)

– “The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.”)

– Upjohn held that a corporation could invoke privilege to protect communications between company lawyers and non-management employees, rejecting the narrower “control group test” and expanded the scope of the work product doctrine

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Federal Common Law of Privilege

• Federal Rule of Evidence 501 provides: "the privilege of a witness . . . shall be governed by the

principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience.“

• The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law

• The privilege applies to confidential communications from a client to the lawyer, whether oral or written, as well as advice, opinions, and similar communications from the lawyer to the client

• The Model Rules of Professional Conduct comment that the obligation of confidentiality requires the lawyer to invoke the attorney-client privilege when it applies

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Restatement (Third) of Law Governing Lawyers §68

Requirements for Attorney-Client Privilege • A communication • Made between privileged persons • In confidence • For the purpose of obtaining or providing

legal assistance to the client

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Waiver of Privilege

• Restatement §§78-80 • Privilege can be waived by disclosing the

communication, by putting the assistance or communication in issue, by failing to object, or otherwise

• Critical to obtain all the elements of privilege and guard against unintended waiver

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Protecting Privilege and Work Product

• FRCP 26(b)(5): “When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: – expressly make the claim; and – describe the nature of the documents, communications, or

tangible things not produced or disclosed – and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”

• Anticipate that you will need to describe the communication in a privileged log, identifying who made the communication, who else received it, when it was received, etc.

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Fiduciary Exception to Attorney- Client Privilege

• Restatement § 84: “In a proceeding in which a trustee of an express trust or similar

fiduciary is charged with breach of fiduciary duties by a beneficiary, a communication otherwise within [the attorney-client privilege] is nonetheless not privileged if the communication: (a) is relevant to the claimed breach; and (b) was between the trustee and a lawyer (or other privileged person within the meaning of § 70) who was retained to advise the trustee concerning the administration of the trust.”

• See also Restatement § 85 (Communications Involving a Fiduciary

Within an Organization)

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Non-ERISA Exceptions

• Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), cert. denied, 401 U.S. 974 (1971) “where the corporation is in suit against its

stockholders on charges of acting inimically to stockholder interests, protection of those interests as well as those of the corporation and of the public require that the availability of the privilege be subject to the right of the stockholders to show cause why it should not be invoked in the particular instance.”

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In re Long Island Lighting Co., 129 F.3d 268, 272 (2d Cir. 1997)

“An ERISA fiduciary has an obligation to provide full and accurate information to the plan beneficiaries regarding the administration of the plan. As part of this obligation, the ERISA fiduciary must make available to the beneficiary, upon request, any communications with an attorney that are intended to assist in the administration of the plan. Thus, an employer acting in the capacity of ERISA fiduciary is disabled from asserting the attorney-client privilege against plan beneficiaries on matters of plan administration"

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Is the client a fiduciary? • Lawyer advising the employer on an ERISA plan

amendment is not advising a fiduciary and thus the communications remain privileged against plan participants & beneficiaries. In re Long Island Lighting Co., supra

• But see Washington-Baltimore Newspaper Guild v.

Washington Star Co., 543 F. Supp. 906 (D.D.C. 1982), implying that separate counsel is needed for plan or to preserve employer’s privilege

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Joint Defense Doctrine • The joint defense privilege "is an extension of the attorney client privilege." Waller v.

Financial Corp. of America, 828 F.2d 579, 583 n. 7 (9th Cir.1987) • Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 609, 614–617, 870

N.E.2d 1105, 1110–1112 (2007) recognized the “common interest doctrine” and adopted the following principle of Restatement §76(1):

“If two or more clients with a common interest in a litigated or non-litigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged . . . that relates to the matter is privileged as against third persons. Any such client may invoke the privilege, unless it has been waived by the client who made the communication.”

• See also Restatement § 76 comment (e) (2000) • United States v. Bay State Ambulance and Hosp. Rental Service, Inc., 874 F.2d 20,

28 (1st Cir. 1989) applied the joint defense doctrine in a case of joint representation • Joint Defense doctrine potentially applies to work product. In re Grand Jury

Subpoena, 274 F.3d 563, 574 (2001) • Counsel and client must understand and follow joint defense principles or risk loss of

the privilege and attorney disqualification

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Why does the fiduciary seek legal advice?

U.S. v. Mett, 178 F.3d 1058, 1064 (9th Cir. 1999):

"On the one hand, where an ERISA trustee seeks an attorney's advice on a matter of plan administration and where the advice clearly does not implicate the trustee in any personal capacity, the trustee cannot invoke the attorney-client privilege against the plan beneficiaries.”

• “On the other hand, where a plan fiduciary retains counsel in order to defend herself against the plan beneficiaries . . ., the attorney-client privilege remains intact."

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Divergent Interests of Fiduciary and Participant

• Wachtel v. Health Net, Inc., 482 F.3d 225, 234 (3d Cir. 2007) four-factor test to distinguish an insurer fiduciary from

other ERISA fiduciaries

• Wildbur v Arco Chemical, 974 F.2d 631 (5th Cir. 1992) affirmed magistrate’s decision that attorney’s post-

lawsuit communications with plan administrator were protected, but questioned whether “divergent interests” created an exception

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Communications that may be Subject to Fiduciary Exception

• Legal advice for preparing draft communications -- Tatum v. R.J.Reynolds Tobacco Co., 247 F.R.D. 488, 496(M.D.N.C. 2008)

• Legal advice for responding to participant inquiries (stylistic changes v. legal advice) -- Fischel v. The Equitable Life Assurance, 191 F.R.D. 606, 610 (N.D. Cal. 2000)

• Legal advice regarding management of assets

• Legal advice for benefits determinations

• Legal advice regarding benefits determinations and payments -- Lewis v. Unum Corp. Severance Plan, 203 F.R.D. 615, 620 (D. Kan. 2001)

• Legal advice for plan evaluation -- Anderson v. Sotheby’s Inc. Severance Plan, 2005 U.S. Dist. LEXIS 9033, at *32 (S.D.N.Y. May 13, 2005)

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Attorney Communications During Benefit Claims Procedure

• Documents created before the final denial of benefits were not privileged, including e-mails and memos to and from the employer's corporate counsel regarding the termination of benefits and the progress of the appeal of the benefits decision. With respect to these documents, the court reasoned that “[t]here [was] no indication ... that [counsel] was consulted for the purpose of defending [the employer] against any decision made as to Plaintiff's claim. Rather, it appears that [counsel] was consulted in the context of the claims review process itself.” Lewis v. UNUM Corp. Severance Plan, 203 F.R.D. 615 (D. Kan. 2001)

• Fiduciary exception applies to communications between insurer and its counsel about terminating disability benefits before completing investigation of the claim. Asuncion v. Metropolitan Life Ins. Co., 493 F. Supp. 2d 716 (S.D.N.Y. 2007)

• Lack of mutuality of interests: The Third Circuit, in a case involving communications between insurers and their attorneys with respect to health insurance benefit determinations, held that the fiduciary exception did not apply. Wachtel v. Health Net, Inc., 482 F.3d 225, 234 (3d Cir. 2007) (four-factor test to distinguish an insurer fiduciary from other ERISA fiduciaries)

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Work Product

• FRCP 26(b)(3) Not absolute privilege, but qualified exception to discovery: “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or trial . . . [unless party shows substantial need and undue hardship in obtaining equivalent materials.]” Protects “mental impressions, conclusions, opinions and legal theories” of counsel

• Hickman v Taylor, 329 US 495, 510-511 (1947) • Wildbur v Arco Chemical, 974 F.2d 631 (5th Cir.

1992)(attorney’s communications with plan administrator after suit filed were protected by work product doctrine)

• Donovan v. Fitzsimmons, 90 FRD 583 (N.D. Ill. 1981) (finding no fiduciary exception to work product doctrine)

• Helt v. Metropolitan District Comm'n, 113 F.R.D. 7, 12 (D.Conn.1986) (plaintiff does “not stand in the same position with respect to the attorney, for whom the work-product rule is designed to benefit, as [he does to his] own trustees.” (quoting Donovan)

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General Plan Administration – Varity v. Howe, 516 US 489 (1996): “There is more to plan (or

trust) administration than simply complying with the specific duties imposed by the plan documents or statutory regime; it also includes the activities that are ‘ordinary and natural means’ of achieving the ‘objective of the plan.’” 516 U.S. at 504, citing Bogart on Trusts

– “[A]dvice regarding how to communicate Plan changes to the Plan participants and beneficiaries” held to be discoverable because of the fiduciary exception. Tatum v. R.J. Reynolds Tobacco Co., 247 FRD 488, 49 (M.D. N.C. 2008)

– Breach of fiduciary duty claims may be joined with benefit claims, possibly requiring the fiduciary to seek legal counsel before suit. Consider retaining separate counsel to protect privilege regarding potential liability and whether joint defense doctrine might apply

Order Requiring Production Not Final Order

• Mohawk Industries v. Carpenter, 558 US __, 130 S.Ct. 599 (2010) held that a district court’s order requiring production of materials allegedly protected by attorney-client privilege is not immediately appealable as “final order.”

• Sandra T.E. v. South Berwyn School Dist., 600 F.3d 612 (7th Cir. 2010) and United States v. Krane, 625 F.3d 568 (9th Cir. 2010): non-parties may immediately appeal.

• Hernandez v. Tanninen, 604 F.3d 1095 (9th Cir. 2010)

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Solis v. Food Employers Labor Relations Ass’n , 644 F.3d 221 (4th Cir. 2011)

Solis (decided before the Supreme Court’s decision in Jicarilla) ruled that the fiduciary exception entitled the U.S. Department of Labor to obtain privileged communications between ERISA multiemployer plans and their legal counsel.

Court reasoned that the “real client” is the beneficiary, not the fiduciary, and the fiduciary has a duty of full disclosure to the beneficiary.

The case may be explained in part because the multiemployer plans evidently failed to provide a proper privilege log to support the claim of attorney-client privilege and work product. However the court of appeals used exceptionally broad language in finding that the government could obtain privileged attorney-client documents.

“The documents which the Funds were required to disclose included Board of Trustee meeting minutes, handwritten notes distributed and taken during the meetings, and correspondence that concerned the Madoff-related investments. All of these documents appear clearly to relate to the Funds' administration.”

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Anderson v. Reliance Std. Life Ins. Co., 2012 U.S. Dist. LEXIS 1244, 13-15 (D. Md. Jan. 5, 2012)

• Defendant asserted the attorney-client privilege and work product

doctrine, but failed to particularize its objections. Court quoted Solis ("the fiduciary exception to attorney-client privilege extends to communications between an ERISA trustee and a plan attorney regarding plan administration," and "there is no legitimate basis on which to distinguish between the two privileges in the application of the fiduciary exception in the ERISA context.“)

• Defendant waived attorney-client privilege and work product protection, but a confidentiality agreement may be appropriate.

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Arguments Against Exception from Jicarilla

• Supreme Court supports the view that courts are not authorized to expand ERISA's disclosure provisions. As trustee form the Indian tribes, the Government is subject to detailed reporting requirements. The Court said that the statute leaves no room for a fiduciary exception:

“When Congress provides specific statutory obligations, we will not read a “catchall” provision to impose general obligations that would include those specifically enumerated…. Reading the statute to incorporate the full duties of a private, common-law fiduciary would vitiate Congress' specification of narrowly defined disclosure obligations. “ Jicarilla at 2329–30.

• Court cited two ERISA decisions, Massachusetts Mut. Life Ins. Co.

v. Russell, 473 U.S. 134 (1985) and Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 837 (1988).

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Analysis of Court in Jicarilla • The Court determined that the government, not the beneficiary of

the trust, was the real client, with distinct and conflicting interests from the trust beneficiaries. Assuming, but not deciding, that a fiduciary exception might exist in the context of a private trust, the Court concluded that the federal government did not have the same common-law disclosure obligations as a private trustee.

• The Court gave great weight to the source of the funds used to pay for the legal counsel. In Jicarilla, the government attorneys were paid out of congressional appropriations at no cost to the tribe, and the Court noted that the source of funds is a strong indicator of precisely who the real clients are and a significant factor influencing who ought to have access to the legal advice.

• Jicarilla emphasized the public interest for “full and frank communications between attorneys and their clients” to further the observance of law and administration of justice.”

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Jicarilla Dissent • "The fiduciary exception is now well recognized

in the jurisprudence of both federal and state courts, and has been applied in a wide variety of contexts, including in litigation involving common-law trusts, disputes between corporations and shareholders, and ERISA enforcement actions." United States v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2332-33 (Sotomayor, J., dissenting) (footnote and internal citations omitted).

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Post-Jicarilla Court Decisions • So far courts have continued to apply the fiduciary exception in the ERISA

context. In Harvey v. Standard Ins. Co., 2011 U.S. Dist. LEXIS 107834, 2-3 (N.D. Ala. Sept. 15, 2011), and in Moore v. Metropolitan Life Ins. Co., 2011 U.S. Dist. LEXIS 75725 (M.D. Ala. July 13, 2011), two U.S. district courts in Alabama held that the fiduciary exception could be applied to compel the production of privileged attorney-client communications between a disability insurer and its in-house attorney regarding an ERISA participant’s claims for benefits.

• Both courts distinguished Jicarilla as limited to the federal government’s special role as trustee of Indian funds and found the Supreme Court’s decision did not impact the availability of the fiduciary exception in the context of ERISA.

• “In the context of ERISA fiduciaries, the exception has been expressly recognized and persuasively applied by the Second, Fourth, Fifth, Seventh, and Ninth Circuit Courts of Appeal. Although the Eleventh Circuit has yet to address the issue, several district courts in the circuit also have persuasively recognized the fiduciary exception as applied to ERISA.” Harvey v. Std. Ins. Co., supra

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Garvy v. Seyfarth Shaw LLP, 2012 WL 695426 (Ill.App. 1 Dist. 2012)

• The Appellate Court of Illinois declined to adopt the fiduciary duty exception to the attorney-client privilege where defendant law firm sought legal advice regarding a malpractice claim when the firm was still representing plaintiff client.

• The Court cited Jicarilla in deciding that even if the exception were recognized in Illinois, the existence of adversarial proceedings pending between the fiduciary and the beneficiary at the time the legal advice was sought, would indicate that the fiduciary was seeking legal advice in a personal rather than a fiduciary capacity, and the exception would not apply.

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Limitations to the Fiduciary Exception

Settlor functions: Employers are not acting as fiduciaries when considering plan design, amendments, or termination

Lockheed v. Spink, 517 U.S. 882, 890 (1996)

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– Communications about amending plan benefits by spinning off assets to new plan privileged. Tatum, 247 F.R.D. at 496

– Communications about creating new plan committee to supervise plan privileged. Beesley v. Int’l Paper co., 2008 WL 2323849, at *2-3 (S.D.Ill. June 3, 2008)

– Legal advice about draft 204(h) notices and SPDs privileged. In re JP Morgan Cash Balance Litig., 2007 U.S.Dist.LEXIS 31964, at *2-3 (S.D.N.Y.Apr.30, 2007)

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• Personal Defense Limitation

Employers are not acting as fiduciaries when seeking legal advice to defense against a personal lawsuit. Mett, 178 F.3d at 1063

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• Fiduciary Liability Advice – Fiduciary’s retention of counsel to defend against

claim. Mett, 178 F.3d 1064

– Fiduciary acting to defend an act of administration against a participant’s claim, the fiduciary acting in own interests, not in the participant’s interest. Shields v. Unum Provident Corp., 2007 U.S.Dist.LEXIS 17836, at *13-14(S.D. Ohio Mar 9, 2007)

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• Claim Denial Letters – Advice after claim denial privileged. Fortier v. Principal

Life Ins. Co., 2008 WL 2323918, at *2 (E.D.N.C. June 2, 2008) – Advice after participant retains counsel privileged.

Halbach, 2006 U.S.Dist.LEXIS 84591, at *18

– Advice after participant threatens litigation privileged. Geissal v. Moore Med. Corp., 192 F.R.D. 620, 625-26 (E.D.Mo. 2000)

– Advice about trustees’ personal exposure privileged. Fischel, 191 F.R.D. at 610

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Limitations to the Fiduciary Exception—Recent Cases

• Administrative Review – In house legal opinions and research

memoranda prepared prior to claim denial discoverable; memorandum prepared after denial protected by work product doctrine. Buzzanga v. Life Ins. Co. of N. Am., 2010 U.S.Dist. LEXIS 33089 (E.D. Mo. 2010)

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• Documents generated, produced, or reviewed by plan administrator in connection with the initial and final administrative decisions discoverable, rejecting magistrate decision that there was a divergence of interests prior to claim being filed. Allen et al. v. Honeywell Retirement Earnings Plan, et al., 698 F.Supp.2d 1197 (D.Az. 2010)

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• Fiduciary exception required production of documents concerning plan administration and investment of plan assets; documents containing information concerning settlor functions privileged. David et al. v. Alphin, et al., 2010 U.S.Dist.LEXIS 102278 (D.N.C. 2010)

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• Fiduciary exception not applicable to request for documents pertaining to settlor functions such as when fiduciaries amend or terminate a 401(k) plan. Trans-Industries, Inc. et v. Dale S. Coenen et al., 1020 U.S.LEXIS 134779

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• Compliance with ERISA or IRC – Legal advice regarding ERISA compliance in

plan redesign privileged. Halbach v. Great-West Life & Annuity Ins., 20006 U.S. Dist.LEXIS 84591, at *15-16 (E.D.Mo.Nov.21, 2006)

– Legal advice about plan’s compliance with IRC statutory obligations discoverable. Fischel v. The Equitable Life Assurance, 191 F.R.D. 606, 610 (N.D.Cal. 2000)

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Burden of Proof Re: Application of the Fiduciary Exception

• Party asserting privilege has the burden of showing communications relate solely to employer’s settlor functions

• Burden not met where court could not conclude documents relating to changing the plan were solely related to settlor functions. See Aull v. Cavalcade Pension Plan, 185 F.R.D. 618, 627 (D.C.1998)

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Burden then shifts to party seeking

production to show fiduciary exception applies; doubt resolved in favor of privilege and against disclosure – Mett, 178 F.3d at 1064

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• Majority rule – presumption fiduciary exception bars application of attorney-client privilege relating to plan administration and rejecting good faith requirement

Washington-Baltimore Newspaper Guild Local 35 v. Washington Star Co., 543 F. Supp. 906 (D.D.C. 1982)

Martin v. Valley National Bank of Arizona, 140 F.R.D. 291 (S.D.N.Y. 1991)

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• Minority Rule – applies good cause test to determine if fiduciary exception applies – Quintel Corp. v. City Bank, 567 F.Supp. 1357

(S.D.N.Y. 1983)(applies good cause test)

– Felts v. Masonry Welfare Trust, 3 E.B.C. 2490 (D. Ore. 1982)(considers Garner factors and applies good cause test)

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Ethical Concerns for ERISA Plans and Fiduciaries

• Conflicts of Interest – rules of professional conduct prohibit attorneys from representing more than one entity if an actual or potential conflict of interest exists: – Multiple fiduciaries—adversity may exist among fiduciaries e.g.

co-fiduciary liability and one fiduciary may be required to sue another

– Plan and fiduciaries—e.g. plan may be required to deny benefits to otherwise eligible fiduciary due to an error by a fiduciary

– Plan and Insurer or Fiduciary--recovery of benefits from plan assets (benefits claim) or insurance policy (fiduciary breach claim) may require separate counsel

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Ethical Concerns for ERISA Plans and Fiduciaries

• Multiple counsel may be advisable – Fiduciary breach allegations commingled with plan

administration issues See Martin v. Valley National Bank of Arizona, 140 F.R.D.

at 324-25 (suggesting fiduciary could protect communications with counsel hired “at his own expense and for his own protection” as a result of Department of Labor investigation, but finding privilege waived, in part because the same counsel was used to defend investigation as had provided administrative advice to the plan)

– Plan interpretation issues – employing attorney who

drafted plan as a witness

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Special Concerns for In-House Counsel

• Serious consideration issues – Fischer v. Philadelphia Electric Co., 96 F.3d 1533,

1538 –1539 (3d Cir. 1996) • Pre-litigation work-product less likely to qualify

for protection – Wildbur v. ARCO Chemical Co., 974 F2d 631 (6th Cir.

1992) • Business v. legal advice

– Stout v. Illinois Farmers Ins. Co., 852 F.Supp. 704 (S.D.Ind.1994)

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Best Practices for Preserving the Privilege

• Significance of defining roles in Engagement Letter – Initiation of investigation – courts analyze

whether it was primarily motivated by legal advice and/or anticipated litigation

– Course of investigation – focus on attorney’s involvement

– Use of investigation results

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• Sandra T.E. v. South Berwyn School District 100, 600 F.3d 612 (7th Cir. 2009) – 7th Cir. reversed district court finding that law

firm’s investigation- related materials concerning a molestation investigation were not protected

– Circuit court focused on engagement letter that specified that firm was to provide legal advice

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• Educating the client – Fiduciary training – Continuing education/Seminars

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• Implementing procedures to avoid inadvertent waivers – Engagement letter

– Document controls

– Consideration of privilege issues when

communicating with third-party providers

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Always remember the statements of you

and your client may not be privileged from plan, trust, or estate beneficiaries

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• Who holds the privilege?

• Even if privileged, it’s not your privilege, and may be waived only by the client

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• Advice of Counsel Often your advice may be a fact your client

will want to establish, and this may open up all communications to discovery

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Ronald S. Kravitz • Mr. Kravitz is a partner in the San Francisco office of Liner Grode

Stein Yankelevitz Sunshine Regenstreif & Taylor LLP. He is a Fellow of the American Bar Foundation and is listed in SuperLawyers under Employee Benefits. He has represented numerous fiduciaries, plan administrators, broker-dealers, and registered representatives in plan administration and investment matters. He is a member of the Employee Benefits Committee of the ABA Section of Labor and Employment Law., and a co-chair of the Fiduciary sub-committee. Mr. Kravitz is a graduate of Miami University of Ohio and received his law degree from Temple University School of Law.

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James P. McElligott, Jr.

Mr. McElligott is a partner in the Richmond, Virginia office of McGuireWoods LLP. He handles employee benefits, executive compensation, and labor relations matters for employers and fiduciaries, and has an active litigation and arbitration practice. He is a Fellow of the College of Labor and Employment Attorneys, and is listed in Chambers USA, Best Lawyers in America, and SuperLawyers under both Employee Benefits and Labor and Employment. He is a member of the Employee Benefits Committees of the ABA Sections of Taxation and Labor and Employment Law (co-chair of the Benefits Claims Subcommittee), a member of the US Chamber of Commerce Employee Benefits Committee, former President of the Federal Bar Association, Richmond Chapter, and former president of the Central Virginia Employee Benefits Council. Mr. McElligott is a Phi Beta Kappa graduate of the University of Illinois and received his law degree, cum laude, from Harvard Law School, where he served as Note Editor on the Harvard Journal on Legislation.

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