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Richard Birmingham

Rich Birmingham has over 30 years of experience in both employee benefit consulting and ERISA litigation. He is one of the few lawyers in the country who is listed in "Best Lawyers in America" in two employee benefit categories—ERISA law and ERISA litigation. His command of both the substantive and litigation areas of ERISA enable him to give practical proactive advice when consulting with clients and to obtain early dismissal or settlement when litigating ERISA matters. Rich is a frequent speaker at employee benefit seminars and has published numerous articles and client advisories on a wide variety of employee benefit issues.

Rich’s personal interests include adventure travel, photography, and bicycling. In 1991, he completed a 4,000-mile bicycle journey across Siberia, Russia (Bicycling Magazine, June 1997). Rich is married with a daughter.

Consulting Practice Highlights
  • Qualified Plans: Has drafted and consulted on a wide variety of profit sharing, money purchase, defined benefit, cash balance and cross-tested plans.
  • Non-Qualified Plans: Experienced with SERPS, incentive plans, top-hat plans, and rabbi trusts.
  • Welfare Plans: Drafted and consulted on both insured and self-insured medical, dental, and visions plans. Has established fringe benefit programs and payroll practices. Has drafted and consulted on COBRA compliance.
  • Cafeteria Plans: Drafted and consulted on Section 125 cafeteria plans and non-discrimination testing.
  • Health Care Reform: Advises clients on grandfathered plans, health care reform compliance, and "wellness" issues.
  • Multiple Employer Plans: Established multiple employer defined benefit and defined contribution plans. Frequent consultant on "controlled group" testing.
  • MEWAs: Established and registered MEWAs in Oregon, Washington, and Alaska.
  • Stock Options: Implemented non-statutory stock options, statutory stock options, and restricted stock and phantom stock options.
  • 409A Arrangements: Drafted and "corrected" 409A arrangements.
  • IRAs: Qualified brokerage firms to be IRA custodians and drafted IRA prototypes.
  • VEBAs: Established VEBAs for self-insured medical and disability plans.
  • Nonprofit Entities: Drafted and consulted on 403(a), 457(b), and 457(f) plans. Represents both government and non-governmental tax exempt entities.
  • Mergers and Acquisitions: Represented buyers and sellers in mergers and acquisitions. Reviewed representations and warranties, evaluated liabilities, and terminated and established plans.
  • IRS and DOL Audits: Has successfully represented entities with respect to IRS and DOL audits.
  • Compliance Programs: Has submitted applications to IRS and DOL compliance programs - VCP and VFC programs.
  • ESOPs: Has represented employers and financial institutions with respect to ESOP financing transactions.
  • Multiemployer Plans: Has advised and litigated multiemployer withdrawal liability.

Rich is a frequent speaker at employee benefit conferences. He recently spoke at the National Congress on Health Insurance Reform, the King County Bar Association, the Western Pension Conference, the Seattle Pension Roundtable, and the DWT Annual Employee Benefits Seminar. He has also spoken before the Alaska Regional Pension Forum, the Northwest Hospital Council, the Washington State Bar Association, and the University of Washington School of Law. He has given over 50 presentations.

Rich is a frequent author of employee benefit advisories. He has written or co-authored over a dozen client advisories in recent years.

Representative Litigation Experience

Lehman v. Nelson

In a case of first impression, now pending before the 9th Circuit Court of Appeals, represented a class of union Travelers seeking the transfer of reciprocity contributions. The under-funded multiemployer Plan was utilizing the dollar amount of the Pension Protection Act contributions to fund the Plan, rather than transferring such contributions to the Travelers’ home fund, as required by the terms of the pension plan and the reciprocity agreement. A judgment in the amount of approximately $2.5 million was secured on behalf of the Class. (Ongoing)

Business Health Trust v. Office of the Insurance Commissioner

In a case of first impression, Business Health Trust litigated the issue of an Association’s status as an ERISA 3(5) Employer. After prevailing on jurisdictional motions, this case was settled on terms favorable to Business Health Trust. As a result, the Seattle Chamber of Commerce was able to offer group medical insurance policies to its members that were organized along historical industry group lines of business. (2015)

Ferguson v. Hanford Employee Welfare Trust

Represented the Hanford Employee Welfare Trust in a claim for retiree medical benefits. The Court ruled in favor of the Trust on summary judgment–finding no liability for retiree medical benefits. (2012)

Khron v. Hanford Multi-Employer Pension Plan, Hanford Operations and Engineering Pension Plan

Represented the Hanford Pension Plan with respect to a claim of improper offset from pension benefit. Settled the case for a nominal sum while securing the right to offset future pension payments. (2012)

Olympic Cascade Services, Inc. v. Inlandboatman’s Union of Pacific National Pension Plan

Represented Olympic Cascade Services, Inc. in the arbitration of its withdrawal liability allegedly owed to a multiemployer pension plan. Arbitrator ruled in favor of Olympic Cascade finding no liability under the Free Look Rule. Arbitrator ordered refund of all payments previously made with interest thereon at the rate of 7.5 percent. (2012)

Pierscieniak v. Volt Information Sciences, Inc.

Secured summary judgment on behalf of Volt Information Sciences in a class action suit involving allegations that the vesting provisions in the company's 401(k) plan violated ERISA. (2010)

Air Line Pilots Association, International Union v. Alaska Airlines, Inc.

Represented defendant in a complex arbitration involving interest and mortality changes required by the Pension Protection Act and the ability of defendant to make unilateral amendments to the Plan due to changes in the tax code. Won a complete victory for Alaska Airlines, Inc., which saved the pension plan millions of dollars a year in additional pension costs. (2009)

Strunk v. Public Employees Retirement System*

Successfully represented a class of non-union workers that sued the State of Oregon and the Oregon Public Employees Retirement System (PERS) Board for $2.2 billion for changes made to Tier One of the Oregon PERS. The case was tried to a Special Master appointment by the Oregon Supreme Court. In a four-three split decision, the Court held unconstitutional a number of the legislative changes, giving workers a victory of approximately $1.1 billion. In a subsequent unanimous opinion, the Court awarded attorney fees, costs and a multiplier for 'exceptional success' and the skill and professional standing of the lawyers involved. (2007)  

Compton v. Port of Seattle and Jones v. Port of Seattle*

Served as defense counsel representing the Port of Seattle in a claim for alleged wrongful contributions to the Social Security system on behalf of port police officers and firefighters. Damages were estimated in excess of $50 million. Won the case on summary judgment. (2004)  

Spear v. Alaska Electrical Workers; Garrison v. Alaska Carpenters; Alleva v. 302/301 Operating Engineers; Street v. Alaska Laborers; Thayer v. Alaska Teamsters

Represented union workers (George Spear, Vern Garrison, Ron Alleva, Paul Street and Kenneth Thayer) who alleged that, due to a partial termination of their union plans, their pension benefits vested upon completion of the Alaska pipeline. Settled the lawsuits and the actuarial present value of the settlements was in excess of $90 million. (1996)  

Eidem v. Board of Trustees of Local 290 Plumber, Steamfitter & Shipfitter Industry 401(k), Pension Trust and Welfare Trust*

Representing class plaintiffs in a lawsuit alleging breach of fiduciary duties in connection with the Trusts' investments with Capital Consultants (based in Portland, Ore.). Capital Consultants ran a Ponzi scheme and investors lost more than $300 million, of which approximately 60 percent has been recovered. The claims against the Trustees were settled for $3,738,864. (Claims in Bankruptcy Ongoing)

Gilmore v. Columbia Falls Aluminum Company*

Served as special ERISA defense counsel in a $122 million class action alleging breach of contract and breach of fiduciary duties with regard to a profit sharing plan. Case was removed from state to federal court (U.S. District Court, Montana). The case was settled six years later, after the court ruled that employees had a state law cause of action that did not implicate ERISA.

Hoffman v. Regence Blue Shield*

Served as special ERISA counsel for the defense in this class action lawsuit, which involved the alleged failure to provide proper reimbursements for health care rendered by alternative care providers. This case was settled on terms favorable to the defendants.

McPherson v. Board of Trustees of the Eight District Electrical Workers Pension, Welfare and 401(k) Trusts*

Representing class plaintiffs in a lawsuit alleging breach of fiduciary duties in connection with the Trusts' investments with Capital Consultants (based in in Portland, Ore.). The claims against the Trustees were settled for $5,250,411. In addition, settlements for $11,425,000 and $900,000 were reached with third-party consultants. (Claims in Bankruptcy Ongoing)

Rosen v. Blue Cross of Washington and Alaska*

Served as co-counsel for the defense of this ERISA class action lawsuit, in which the plaintiff class had alleged a breach of fiduciary duty, breach of contract, and violation of state insurance regulations. The case involved the alleged failure to pass through provider discounts. This case was settled for under $1 million.
* Denotes experience completed at a prior firm

Professional & Community Activities

  • Former Adjunct Professor, Pension & Profit Sharing, Seattle University School of Law
  • Former Contributing Editor, Compensation and Benefits Management (a national quarterly)
  • Executive Compensation and Employee Benefit Committee; Employee Benefits Committee; Welfare Benefit Committee – American Bar Association
  • Seattle Pension Roundtable
  • Western Pension Conference

Professional Recognition

  • Fellow, The American College of Employee Benefits Counsel
  • Named one of the "Best Lawyers in America" in Employee Benefits Law by Best Lawyers in two categories: ERISA law and ERISA litigation  
  • Selected by Best Lawyers as Seattle's "Lawyer of the Year" in Employee Benefits (ERISA), 2012, 2014 
  • Selected to "Washington Super Lawyers" in Employee Benefits, Thomson Reuters, 2003-2004, 2007-2017
  • Selected to "Who’s Who in American Law," "Who's Who in Practicing Attorneys," and "Who's Who in Emerging Leaders"
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