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Kevin McBride

Pension & Benefits Litigation

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Pension & Benefits Litigation

McBride PC represents plan participants in pension & benefits litigation under ERISA. This includes 401(k) plan litigation, pension plan litigation and group health plan litigation–all of which are governed by the Employee Retirement Income Security Act of 1974–better known by its popular acronym, “ERISA.”

Importantly, all three ERISA categories–(401(k) plans, traditional pension plans and group health and welfare plans)–are  subject to ERISA’s fiduciary duty requirements. This means the plan sponsor and other fiduciaries may only manage plan assets for the sole benefit of plan participants (after paying reasonable management fees).

But with increased stock market volatility, ERISA plans now face significant risk as plan sponsors look for ways to maintain their own profitability–often at expense of plan participants.

New investment structures known as “collective investment trusts” (see FAQ) are rapidly replacing traditional mutual funds. Plan sponsors often hide risky alternative investments (see FAQ) inside a collective investment trust. These alternative investments generate far more profit for investment managers than mutual funds. But collective investment trusts have lower reporting requirements under federal law.  The net result is that your pension plan may be loaded with risky alternative investments that generate high profits for investment managers–without your knowledge.

Our primary work is to protect pension and benefit rights for employees — to challenge employers and plan sponsors who would cut benefits and use plan money for their own purposes.

We have an enviable track record of success against large companies.

In our work, we apply the blueprint for small-group conflict strategy that allow small litigation teams to succeed against large opponents. The principles applicable to litigation are simplicity, preparation and innovation.

Key among these is simplicity–keeping a litigation plan clear and objectives focused, while disregarding ancillary claims and arguments.

McBride typically associate other firms and lawyers as co-counsel, on a case-by-case basis.

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We are Highly Evidence Driven.

Litigation is discovering the truth, and cases are won or lost based on the evidence presented. In ERISA cases, we work hard to identify and uncover evidence of self-dealing.  Self dealing is a siren call that a great many investment managers cannot ignore–and this always harms the plan’s returns. We focus intently on developing this evidence to ensure victory for our clients.

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We give Close Personal Attention.

Our advantage over other large firms is our approach to cases. We dedicate ourselves to every aspect of the case and don’t rely on junior associates to research, write, and argue for us.

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We are Cost Effective.

There’s no reason to pay hefty costs to firms when you can obtain equal or better quality litigation work from McBride PC at a fraction of the cost than our opponents.

Case Studies

Financial litigation cases are won based on deep research of applicable facts that tell a story of liability. The following are examples of McBride’s litigation work across various areas of our litigation practice:

Pension Litigation

We won a $42 million pension increase for 574 retired United Airlines Pilots in ESOP appeal to Pension Benefit Guarantee Corp (PBGC), the largest pension increase for any employee group in 20 years.

Vaccination Mandate Litigation

We currently represent 683 Los Angeles County Firefighters in a challenge to a vaccination mandate under the California Constitution.  With over a year of hard-fought litigation behind us, not one of our firefighter clients has been forced to take a Covid vaccination and not one has been fired for refusing a vaccination.

Derivatives Litigation

We represented a corporate client against Citibank to recover $12 million in derivative-based investment losses. After identifying alleged self-dealing, with a prop trading desk apparently taking both sides of trades that resulted in losses to our client, we settled the case for $7.5 million early in litigation.

Structured Notes

We advised high net-worth individual investors on structured notes recommended by a JPMorgan Securities advisor. The notes referenced a complex set of underlying securities with significant redemption and liquidity limitations. This problem, incidentally, is rampant in many pension and 401k investments offered today under the structure of a “collective investment trust.”

Unfair Competition

We worked as co-counsel with Boies, Schiller & Flexner, representing a mid-sized software company in an unfair competition claim against IBM. The case settled for $14.25 million. The case was settled when we identified internal emails at IBM showing a “public position” on a partnership offering and an “internal position” for IBM internal use only. Faced with this discrepancy, IBM chose to settle the case.

Railway Labor Act Representation

We represented 1000+ United Parcel Service Pilots in staging a union election under the Railway Labor Act. This resulted in every pilot flying for UPS leaving the Teamsters Union and joining the new union we organized, the Independent Pilots Associaton.

Bankruptcy Adversary Proceedings

We have represented multiple parties in bankruptcy adversary proceedings, including a challenge to pension valuation in the United Airlines Bankruptcy. Our valuation analysis was later used by lawyers for American Airlines pilots, resulting in the bankruptcy court’s refusal to allow American to terminate its pension plan–saving millions of dollars for American employees.

Healthcare Sharing Law

We currently represent a national healthcare sharing organization in compliance, litigation and lobbying.  Our work has included successful lobbying in Texas, Montana, Colorado and Arizona involving the constitutionality of the Affordable Care Act’s religious exemption.

Why choose McBride PC?

 Our greatest differentiating value is to understand and simplify pension financial complexities. We bring a singular clarity to the right claims, the right words, and the right concepts that makes a case stand above the ordinary.

This is why you should choose McBride.

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McBride has been the “go to” lawyer for United Airlines Pilots on pension issues. He accomplished a $42 million pension increase representing 574 retired pilots in PBGC action when Union would not represent them. He also represented the pilots in two other actions; both involving the UAL mandated employee buyout. McBride is fearless in challenging corporation treatment of employees.

Jerry Summers

Retired 747-400 Captain, United Airlines

FAQs

FAQ

Alternative Pension Investments

What are alternative investments in a pension plan?

Alternative investments are investments in non-standard assets like cryptocurrencies, hedge funds, private equity funds and complex products.

A distinguishing feature of alternative assets is the valuation method.  Importantly, alternative assets typically do not have a readily available trading market and are therefore valued at “net asset value.”

Compare this to “standard” investments held in pension plans, such as stocks, bonds and mutual funds that are bought and sold at an established “fair market value” on a public securities market.

What’s the difference between “fair market value” and “net asset value," and why should I care?

For assets valued at “fair market value,” the current asset value can be readily determined at least daily, as published by a stock ticker on a public securities market (such as NYSE).

But for assets valued at “net asset value,” the current asset value is not published on a public securities market and must be approximated from book value, or some other valuation method the pension plan’s board establishes “in good faith.”

Therefore, net assete value is inherently less reliable than fair market value, and the valuation process takes longer. So, 401(k) plan investors needing to access cash from plan assets may face a difficult time accessing the actual current value of their plan assets if valued at net asset value than if valued at fair market value.

Are alternative investments safe?

Alternative investment assets are more risky than standard assets (such as mutual funds).

But each 401(k) investor has his or her own risk profile. Therefore, alternative assets are neither “bad” nor “good.” It all depends on market conditions and the investor’s desired risk profile.

In a stable or rising stock market, the risk inherent in alternative investments is relatively low. “A rising tide lifts all boats,” as the saying goes.

But in a volatile or falling stock market, alternative investments may underperform and cause liquidity problems that will make it difficult to withdraw your money when you need it.

The important thing is to understand the risk profile of the investment assets held in your 401k plan, so you can make an informed decision.

FAQ

Collective Investment Trust

What is a Collective Investment Trust in a pension plan?

A Collective Investment Trust (“CIT”) is entity that pools pension money from multiple different pension plans, and then buys investment assets in the name of the trust. Each contributing pension plan holds a beneficial interest in its share of the pooled CIT assets.

Who Owns a Collective Investment Trust?

A Collective Investment Trust is typically held in the name of a large bank as trustee for multiple pension plans (the beneficiaries of the trust) that have pooled their pension money in the trust.

The most prominent large banks that actively provide Collective Investment Trusts access and management services to pension plans are JP Morgan, Citibank, Wells Fargo and Bank of New York Mellon.

Is the Trustee (Bank) of a Collective Investment Trust Directly Responsible to Individual Pension Plan Participants?

Typically, no. The large banks that own Collective Investment Trusts are not held directly accountable to plan participants in a pension plan.

Who is Responsible to Plan Participants for Investments in Collective Investment Trust?

The ERISA Fiduciaries of a pension plan must answser to plan participants. An ERISA fiduciary must do two things:

First, the Fiduciary must regularly review the investment options offered in a 401(k) plan and must remove under-performing investments. In a volatile or falling stock market, Collective Investment Trusts are likely to underperform, since they typically lack liquidity. This was the problem in the 2022 UK pension plan crisis–book value of investments remained high, but the investments could not be readily converted to cash.

Second, the Fiduciary must explain the Collective Investment Trust to plan participants in plain English, so that the participant can make an informed choice to include the CIT, or not, in his or her own 401(k) plan.

What Type of Assets are Typically Held in a Collective Investment Trust?

It is common for Collective Investment Trusts to hold high-risk assets in alternative investments such as cryptocurrencies, hedge funds, structured notes and other complex products.