- Leading the defense of several putative class actions alleging breaches of fiduciary duties under ERISA regarding the selection of investments and payment of supposed “excessive” recordkeeping fees in 401(k) plans. Kendall, et al v. Pharmaceutical Product Development LLC, et al. (E.D.N.C.); Gerken v. ManTech Int’l Corp. (E.D. Va.); Jones v. Coca-Cola Consolidated, Inc. (W.D.N.C.)
- Leading the defense of several executives of BBVA Bancshares in their capacity as individual fiduciary committee members in putative class action alleging excessive fees and imprudent investment options in a 401(k) plan offered to company employees. Ferguson v. BBVA USA Bancshares Inc. (N.D. Ala.).
- Represented Insperity Inc.in a two-week bench trial challenging newly designed proprietary investment options in its 401(k) plan. Pledger v. Insperity, et al. (N.D. Ga.).
- Representing several companies in putative class actions alleging statutory violations and breach of fiduciary duty under ERISA arising from the selection of certain actuarial equivalence factors used to calculate benefits in defined benefit pension plans. Herndon v. Huntington Ingalls Industries. Inc. (E.D.Va.); Berube v. Rockwell Automation Inc. (E.D. Wi.); Brown v. UPS (N.D. Ga.).
- Represented Norton Healthcare in a putative class action alleging that the defendants breached ERISA fiduciary duties by not choosing the lowest-cost share classes for mutual funds available in its 403(b) plan by choosing a stable-value fund as an investment option and by paying asset-based fees for administrative services. Disselkamp, et al. v. Norton Healthcare (W.D. Ky.).
- Represented Brown University in a putative class action alleging excessive recordkeeping fees and imprudent investment options in two 403(b) plans offered to faculty and staff of the university. Short v. Brown University (D.R.I.).
- Representing Cigna Corporation in various disputes with out-of-network providers across the country claiming entitlement to benefits based on patient assignments. Argued before the Ninth Circuit on an issue of first impression regarding the standard for pleading claims for benefits under ERISA. New Method Wellness v. Cigna Corp. (C.D. Cal., Ninth Circuit).
- Defending several actuarial consulting firms against claims for actuarial malpractice, breach of fiduciary duty, and breach of contract.
- Argued and prevailed on a motion for summary judgment in a dispute brought by a former American Basketball Association player regarding claims for pension benefits under the American Basketball Association Players’ Retirement Plan. Gilmore v. American Basketball Association Players’ Retirement Plan (M.D. Fla.).
- Defended four NBA teams and sponsors of the American Basketball Association Players’ Retirement Plan in a class action alleging various violations of ERISA arising from administration of the plan. Calvin v. San Antonio Spurs, et al. (W.D. Tex.).
Partner,
- Phone: 202.239.3695
- Email: emily.costin@alston.com
Employers faced with complex employment and employee benefit claims count on Emily to resolve disputes at the beginning stages with maximum efficiency. In addition to managing active cases, she advises clients on proven strategies to avoid future litigation.
- Defended American International Group (AIG), FSC Securities Corporation, Financial Services Corporation, SunAmerica Asset Management Corporation, SunAmerica Capital Services Inc., SunAmerica Fund Services Inc., and Wharton Business Group in a putative class action alleging various breaches of fiduciary duty under ERISA for a trustee-directed defined contribution plan, including excessive fees. Goldenberg v. Indel Inc. (D.N.J.).
- Represented Dell and various individual fiduciaries of the Dell defined contribution plan in a matter involving Dell stock in the plan. Camera v. Dell Inc., et al. (W.D. Tex).
- Defended Nokia and related individuals in multiple employer stock-drop cases based on publicly reported difficulties with Nokia’s transition to new products and a resulting drop in its stock price. Romero v. Nokia Inc., et al. (N.D.Cal.); In re Nokia Inc. ERISA Litigation (S.D.N.Y., affirmed by the Second Circuit).
- Represented former fiduciaries of an ESOP in class action litigation alleging breaches of fiduciary duty arising from the company’s stock redemption offer to shareholders. Cecil v. Hinshaw (M.D.N.C.)
- Represented Sterling Savings Bank in a putative class action alleging breaches of the fiduciary duties of prudence and loyalty and an alleged duty to communicate complete and accurate information to plan participants and beneficiaries. Laue v. Sterling Savings Bank (E.D. Wash.)
- Represented the American Benefits Council as amicus curiae in an appeal before the Fifth Circuit regarding the pleading standard for employer stock claims.
Emily Seymour Costin is a litigator in Alston & Bird’s Washington, D.C. office and leader of the firm’s ERISA Litigation practice team. Emily represents employers, plan sponsors, insurers, and fiduciaries in litigation over benefits and fiduciary matters under ERISA, including those involving investments, excessive fees, employer stock, actuarial factors, benefit termination, and health benefits. She has a track record of advising diverse groups of clients in other types of disputes involving employment, labor, securities, and health care, insurance, contracts, and professional malpractice. She’s experienced in managing administrative claims and appeals, and responding to government audits, investigations, and subpoenas. Emily also counsels clients on ERISA fiduciary best practices and other litigation avoidance strategies.
Emily is recognized by Chambers USA: America’s Leading Lawyers for Business (ERISA Litigation – Nationwide) and The Best Lawyers in America© in Litigation – ERISA. In 2018, she was one of five nationally recognized lawyers named a “Rising Star” by Law360 in the field of employee benefits.
Emily is a national co-chair of the firm’s Women’s Initiative and participates on the firm’s Diversity Steering Committee.
Bar Admissions
- District of Columbia
- California
Education
- The George Washington University (J.D., 2005)
- University of Pennsylvania (B.A., 2000)
Memberships
- American Bar Association, Joint Committee on Employee Benefits, past chair
- American Bar Association, TIPS Employee Benefits Committee, past chair
- National Association of Women Lawyers
- Law360 Editorial Board (Benefits)
- Benefits Law Journal, Editorial Advisory Board
Court Admissions
- U.S. Supreme Court
- U.S. Court of Appeals for the Second, Fourth, Eighth, Ninth, Eleventh and DC Circuits
- U.S. District Courts for the District of Maryland, District of Columbia, Eastern District of Wisconsin, and the Central, Southern, and Northern Districts of California