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ERISA Class Actions After Epic Systems: Challenges and Potential Opportunities for Plan Sponsors

Impact on Benefit Claims, Fiduciary Breaches, and Class Certification; Arbitration Clauses for Retirement Plans

Recording of a 90-minute premium CLE webinar with Q&A

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Conducted on Tuesday, December 4, 2018

Recorded event now available

or call 1-800-926-7926

This course will guide ERISA counsel and advisers on the legal challenges and potential opportunities for retirement plan sponsors after the Supreme Court’s decision in Epic Systems. The panel will discuss critical issues decided in Epic Systems, the potential impact on benefit and fiduciary claims, class certification, and other challenges relating to waiver and arbitration clauses in retirement plans.


In Epic Systems Corp. v. Lewis, the U.S. Supreme Court ruled that a class action waiver in an employee’s arbitration agreement is enforceable and does not violate the National Labor Relations Act. ERISA counsel must be knowledgeable of the ramifications and potential opportunities the Supreme Court’s decision has on benefits claims, fiduciary breaches, class actions, and the terms and provisions of retirement plans.

Participants of ERISA plans can pursue a claim for plan benefits under §1132(a)(1)(B), breach of fiduciary duty under §1132(a)(2), and a claim for injunctive or other appropriate equitable relief to enforce the terms of the plan or ERISA or to remedy violations of a plan or ERISAunder §1132(a)(3). In accord with the SCOTUS decision in Epic Systems, some or all of these claims may now be subject to waiver or arbitration if appropriate provisions are included in the plan.

The SCOTUS decision made it clear that certain individual claims can be subject to arbitration agreements or class action waivers. The holding may also apply to ERISA plan participant claims for plan benefits and possibly to fiduciary breach claims arising under ERISA, even where the plaintiff is seeking relief for the entire plan rather than individually.

Attorneys representing plan sponsors should take a new look at arbitration clauses and class action waivers and consider modifying existing plan documents to include class action waivers and arbitration clauses going forward.

Listen as our panel discusses the critical issues of the SCOTUS decision in Epic Systems, the impact on plan administration, and best practices for plan sponsors in modifying existing plans or drafting plan provisions in response to the SCOTUS decision.



  1. Overview of SCOTUS Epic Systems ruling and impact on ERISA claims
  2. Class certification and other challenges relating to waiver and arbitration clauses
  3. Recent cases on arbitration clauses and class action waivers post-Epic Systems
  4. Strategies for plan sponors in drafting enforceable arbitration agreements and class waivers


The panel will review these and other noteworthy issues:

  • What exactly does the ruling allow regarding arbitration clauses and class waivers?
  • How does the Epic Systems ruling impact ERISA claims?
  • How can plan sponsors ensure their arbitration provisions are enforceable?
  • How does the court ruling apply to fiduciary breach claims under ERISA?
  • Do fiduciary breach claims need to be class actions?
  • Impact on ESOPs and considerations for counsel
  • Recent cases and legislation post-Epic Systems
  • Best practices in modifying or drafting plan documents in light of Epic Systems


Burriss, Eliot
Eliot T. (Eli) Burriss

McDermott Will & Emery

Mr. Burriss litigates complex commercial disputes throughout the United States, serving as counsel to global...  |  Read More

Nemeth, J. Christian
J. Christian (Chris) Nemeth

McDermott Will & Emery

Mr. Nemeth provides legal counsel on complex commercial litigation and government investigations, including ERISA...  |  Read More

Schmidtke, Mark
Mark E. Schmidtke

Ogletree Deakins Nash Smoak & Stewart

Mr. Schmidtke has represented clients in ERISA and non-ERISA employee benefits matters in state and federal courts...  |  Read More

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