STEPHEN D. ROSENBERG
The Wagner Law Group, A Professional Corporation, Boston, Massachusetts. July 2014 - present
- Experienced ERISA and business disputes lawyer, with substantial expertise in ERISA litigation, ERISA governed benefit plans, fiduciary obligations, plan regulation, ESOPs, top-hat plans, and class actions.
- First chair trial experience in federal courts, state courts and commercial arbitrations.
- Extensive experience counseling clients on and litigating ERISA, ESOP, executive compensation, copyright infringement, software dispute, director and officer, class action, insurer bad faith, reinsurance, complex insurance coverage, construction, business dispute and patent cases.
- Significant experience representing company benefit plans, plan sponsors and employers before the Massachusetts Commission Against Discrimination.
- Assist clients with Department of Labor investigations, voluntary corrections, and negotiated resolutions of participant complaints.
The McCormack Firm, Boston, Massachusetts. 1991 - 2014
Partner - Chair of Firm's ERISA practice
- Supreme Court Broadly Interprets the Scope of ERISA's Church Plan Exemption - ASSPA / Plan Consultant, Fall 2017
- Courts Redefine ERISA's Church Plan Exemption - ASSPA / Plan Consultant, Fall 2014
- “Real Knowledge, Fake Knowledge, and the Duty to Inquire: Time Limitations in ERISA Litigation,” Journal of Pension Benefits, Vol. 21, No. 4, Summer 2014
- "Opening Up the Courthouse Door: The Second Circuit Weighs In on Exhaustion of Administrative Remedies," Journal of Pension Benefits, Vol.20, No. 4, Summer 2013 (analyzing legal trends concerning the requirement that participants exhaust administrative remedies available under a plan).
- "Looking Closely at Operational Competence: ERISA Litigation Moves Away from Doctrine and Towards a Careful Review of Plan Performance," Journal of Pension Benefits, Vol. 20, No. 2, Winter 2013 (examining the judicial expansion of ERISA remedies).
- "An ERISA Litigator Looks at the New Department of Labor Definition of Fiduciary," Journal of Pension Benefits, Vol. 19, No.4, Summer 2012 (examining the regulatory expansion of fiduciary status under ERISA, which would impact ESOPs and their appraisers, among others).
- "Structural Impediments to Breach of Fiduciary Duty Claims," Journal of Pension Benefits, Vol. 19, No.2, Winter 2012 (analyzing doctrinal and procedural barriers to the successful prosecution of breach of fiduciary duty claims under ERISA).
- "Retreat from the High Water Mark: Breach of Fiduciary Duty Claims Involving Excessive Fees after Tibble v. Edison International," Journal of Pension Benefits, Vol. 18, No. 3, Spring 2011 (analyzing issues involved in breach of fiduciary duty actions, including class actions, involving investment options in defined contribution plans).
- "Patent Litigation Doesn't Have to be Prohibitively Expensive," New England In-House Magazine, November 30, 2007 (discussing the use of cost benefit analysis to control costs in patent litigation while still aggressively prosecuting the suit).
- "The Expanding Scope of Advertising Injury Coverage," Declarations, Summer 1992 (analyzing the expansion of the advertising injury grant of coverage to capture additional risks that were not accounted for as part of underwriting).
- Sole Author, Boston ERISA and Insurance Litigation Blog (twice named a Top Law Blog by Lexis/Nexis).
SEMINARS AND PRESENTED PAPERS
- THE CENTRE BARELY HOLDS: ERISA PREEMPTION AFTER GOBEILLE V. LIBERTY MUTUAL INSURANCE COMPANY, Bloomberg BNA Compensation Planning Tax Advisory Board, New York, NY, May 19, 2016
- Faculty, “Liability Insurance for ERISA Plan Sponsors: Maximizing Coverage Under Employee Benefits and Fiduciary Liability Policies - Securing Coverage for Civil Damages and Tax Assessments Arising From the ACA and Other Claims,” June 4, 2015 Strafford Webinar.
- Panelist, “Benefit Claim Litigation,” 9th National Forum on ERISA Litigation, sponsored by the American Conference Institute, April 13-14, 2015.
- Presenter, “Fiduciary Exception to the Attorney-Client Privilege,” 9th National Forum on ERISA Litigation, sponsored by the American Conference Institute, April 13-14, 2015.
- Speaker, “Ethical Issues in ERISA Litigation,” 8th National Forum on ERISA Litigation, sponsored by the American Conference Institute, October 27-28, 2014.
- Sole Presenter, "ERISA Litigation Update," ASPPA Boston Regional Conference, July 2014.
- Faculty, "Executive Compensation Law," MCLE, June 2012. Presented "Litigating Top-Hat Plans and Similar Disputes."
- Speaker, "The Year of Disclosure: New Retirement Plan Regulations and Legislation Impacting 401(k) and 403(b) Plans," New England Employee Benefits Council, March 2012.
- Presenter, "Cyber Risks and Coverage: Questions to Consider," National Presentation for AIG, New York City and national intra-company broadcast, March 2012.
- Sole Presenter, "Fiduciary Exposure and Liability," BrightScope Client Webinar, September 2010.
- Speaker, "Insurance: What is Your Company Getting and What Should it be Asking For?" New England Corporate Counsel Association, May 2009.
- Panelist, "Pension Fiduciaries in the Hot Seat: What to Avoid & How to React if Sued," sponsored by Pension Governance Inc., April 2009.
- Sole Presenter, "ERISA Litigation: An Update from the Front Lines," ASPPA Benefits Council of New England, January 2009.
JOURNALS AND PERIODICAL QUOTING MR. ROSENBERG
- 4 Employment Cases Massachusetts Attys Should Watch - Law360 (free registration required), September 28, 2017
- Latest Wave of 401(k) Suits Yields Big Wins, and Big Losses, for Plaintiffs - MSN (Wall Street Journal), July 13, 2017
- 401(k)s Tweak How They Charge for Expenses - The Wall Street Journal, May 20, 2016
- Pressures Rising for Fiduciaries on Company Stock in 401(k) Plans - Pensions & Investments, March 21, 2016
- Premier ERISA Law Firm Solidifies Its Litigation Practice With the Appointment of Stephen D. Rosenberg as Partner - EconoTimes, January 6, 2016
- Premier ERISA Law Firm Solidifies Its Litigation Practice With the Appointment of Stephen D. Rosenberg as Partner - Morningstar, January 6, 2016
- The Wagner Law Group Appoints Stephen Rosenberg as Partner - Boston City Biz List, January 6, 2016
- Is fiduciary the new floor? - BenefitsPro, October 21, 2015
- Exclusive Interview: ERISA Attorney Stephen Rosenberg Says Litigation’s Legacy is Improved Plan Design - Fiduciary News, October 20, 2015
- The Best Way Plan Sponsors Should Pay Fees for 401k Fiduciary Advice - Fiduciary News, March 3, 2015
- Settlements offer lessons in breach suits - Pensions & Investments, February 23, 2015
- Fiduciary breach issue gets Supreme Court hearing - Pensions & Investments, January 26, 2015
- 10 Insider Blogs Every 401k Plan Sponsor & Fiduciary Must Read (Part I) - Fiduciary News, November 25, 2014
- Retained Asset Accounts Under ERISA Allowed - Massachusetts Lawyers Weekly, July 16, 2014
- Quoted or featured in articles on litigation and ERISA issues in several national publications, including InsideCounsel magazine, Business Insurance, the National Law Journal, Massachusetts Lawyers Weekly, LawyersUSA, the BNA Pension and Benefits Reporter, and Fiduciary News.
- Featured in front page article on ERISA standing issues, "Retirees Granted ERISA Standing to Sue Fiduciaries," Massachusetts Lawyers Weekly, July 28, 2008.
- Quoted extensively on the subject of patenting ERISA and tax related strategies in "A Warning to ERISA Practitioners: Your Benefit Plan Strategies May Be Patented", 34 Pens. & Benefits Rep. (BNA) 1329.
- "Exclusive Interview: Boston ERISA Legal Author Stephen Rosenberg Explains DOL's New Fiduciary Definition," Fiduciary News, January 11, 2011.
- Quoted in "Attorneys Offer Strategies to Reduce Risk That They Will Become ERISA Fiduciaries," BNA Pension & Benefits Daily, March 5, 2010.
- Quoted extensively on fiduciary duties under ERISA in "Deere & Co. Successfully Defends 401(k) Fee Suit," InsideCounsel Magazine, May 2009.
- Featured in "Blogged Down," Boston Business Journal, November 20-26, 2009.
- Interviewed in "Firm blog vs. personal blog: How to choose," Wisconsin Law Journal, June 22, 2009.
- Quoted in "Pension Fund Litigation Could Slow Investments," New York Sun, December 4, 2007.
REPRESENTATIVE ERISA LITIGATION ENGAGEMENTS
- Successfully resolved multi-million dollar ESOP class action involving the valuation of employee stock holdings in a prominent private company.
- Represented plan sponsor, company officers and company investors in complex breach of fiduciary duty class action alleging operational failures in the funding of company benefit plans, including the company's 401(k) plan, eventually resulting in a settlement that avoided any personal liability being imposed on the individual investors and officers.
- Represented a retired senior officer of a publicly traded Fortune 500 corporation in litigation involving deferred compensation due under a top hat plan.
- Represented the retired general counsel of a publicly traded financial and insurance company in a dispute concerning claims for reimbursement of excessive pension payments due to company errors in calculation of benefits combined with dispute over interpretation of relevant plan terms.
- Prevailed on behalf of a plan sponsor and administrators in a claim before the Massachusetts Commission Against Discrimination alleging that an employee benefit plan illegally discriminated between benefits for mental health conditions and benefits for other conditions.
- Argued before the United States Court of Appeals for the First Circuit, obtaining opinion affirming summary judgment previously entered in favor of two Fortune 500 corporations in a complex ERISA dispute.
- Successfully defended the third party administrator for the self-funded health plans of a major Massachusetts retailer against claims for breach of fiduciary duty and breach of contract in administering the plans brought by the sponsor of the health plans.
- Represented plan sponsors, fiduciaries, and plan administrators in numerous denial of benefit claims involving long term disability, short term disability, life insurance, accidental death and dismemberment, and health insurance disputes.
REPRESENTATIVE BUSINESS LITIGATION ENGAGEMENTS
- Represented the directors, officers and private equity investors of a $250 million annual revenue business in multiple ERISA, breach of fiduciary duty, wage act, class action, contract, fraud and piercing the corporate veil cases in numerous jurisdictions over the course of five years, after the company failed. As part of the representation, obtained dismissals of a number of cases, secured summary judgment in another case, and negotiated cost effective settlements of a number of other cases.
- Obtained defense verdict after a bench trial for major insurer charged with unfair settlement practices under Massachusetts' consumer protection and insurance practices statutes, in a case where the plaintiff was seeking what would have been the largest such verdict in state history.
- Tried to verdict an environmental reinsurance case involving coverage under a missing thirty year old contract between two prominent insurance companies.
- Negotiated favorable resolution of complex commercial arbitration in Florida under the Florida state arbitration act, after defeating action in state court in Florida to dismiss arbitration and require the case to be litigated in state court.
- Prevailed on summary judgment motions in federal district court on the issue of whether a particular corporate acquisition qualified as a change in control for purposes of a corporate stock incentive plan available only to officers of the acquired corporation.
- Served as trial counsel in multi-million dollar arbitration before three member panel concerning insurance coverage for patent litigation against major managed care companies.
- Successfully represented major national insurer in a complex multi-party action litigated in multiple forums, including in federal court and in a related commercial arbitration, over liability of various parties for gaps in coverage in a corporation's insurance program. Resolving the action required defeating an attempt by a national insurance brokerage to convince a federal court in West Virginia to enjoin an ongoing arbitration, followed by obtaining an arbitration ruling in favor of the client.
- Represented a major professional liability insurer in complex international coverage case pending in United Kingdom, including at a multi-day mediation in London. Eventually negotiated a favorable settlement among client, a major international construction company, and a prominent Scottish financial institution.
REPRESENTATIVE INTELLECTUAL PROPERTY LITIGATION ENGAGEMENTS
- Represented software developer and distributor in copyright infringement action over knowledge management products, including defeating two separate motions for preliminary injunctions brought against clients.
- Lead trial counsel defending patent infringement action and prosecuting counterclaims to invalidate patent. Case settled during trial on very favorable terms for client.
- Represented architect in copyright infringement dispute over authorship of plans for award winning commercial construction project.
- Successfully defended biotech distributor against trademark, trade dress and copyright infringement claims in federal court in Massachusetts arising out of the sale of allegedly infringing labels designed for cryogenic conditions.
- Negotiated the successful resolution of a copyright infringement action brought in the Southern District of New York by an Italian clothing manufacturer against a California based importer and wholesaler.
1990, J.D. Boston University School of Law
1986, B.S. American University
- Admitted to the Massachusetts Bar