Richard Birmingham

Partner

I efficiently guide employers through the complex maze of benefits laws, regulations and acronyms to achieve their desired goals.

Rich Birmingham has over 40 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. Rich's 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 assists clients through the entire range of employee benefit issues – from designing qualified pension or profit-sharing plans, health and welfare plans, or non-qualified deferred compensation plans – to IRS and DOL audits or defending participant litigation. His practice consists of private, governmental, and nonprofit entities, single and multiple employer plans and multiemployer withdrawal liability.

Rich has participated in mediation training through the Straus Institute for Dispute Resolution and is available to mediate or arbitrate ERISA cases, including multiemployer withdrawal liability and excessive fee cases.

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.

Practice Highlights

Consulting

Designing employee benefits and executive compensation plans in the financial, airline, governmental, hospital, technology and transportation industries and for government contractors, including cafeteria plans, qualified plans, and non-qualified plans. Assisting clients with multiple employer welfare arrangements and association health plans. Advising with respect to employee benefit issues in mergers and acquisitions.

IRS and DOL audits and MPPAA arbitration

Successfully guiding clients through IRS and DOL audits, and the Voluntary Compliance relief process, without adverse consequences and structuring transactions to avoid the assessment of withdrawal liability under MPPAA, as well as negotiating lump-sum settlements or withdrawal liability. Requesting "reviews" for withdrawing employers and arbitrating withdrawal liability demands.

ERISA class action lawsuits

Served as both plaintiff counsel and defense counsel in over 20 ERISA class action lawsuits, raising first-of-their-kind issues in both defense and litigation of ERISA matters.

Class Actions

Service Employees International Union Healthcare 1199NW v. Snohomish County Public District No.1 d/b/a EvergreenHealth Monroe

Represented EvergreenHealth against an alleged claim of failing to make timely employer matching contributions to the EvergreenHealth 401(a) plan. After a series of motions, the case was dismissed with prejudice, as the matter was held to be subject to the grievance and arbitration provisions of the collective bargaining agreement. The dismissal was a complete victory for EvergreenHealth. Counsel, Christine Hawkins, assisted with the dismissal of this matter.

Johnson, et al. v. Carpenters of Western Washington Board of Trustees

In a case of first impression after the Supreme Court's decision in Thole v. U.S. Bank, represented members of the Board of Trustees for indemnification from the trust for the cost of defense and liability for an alleged fiduciary breach. The Court ruled in favor of the individual trustees and required the trust to indemnify and advance the cost of defense. The trustee defendants would be required to repay such amounts only if a court issued a final decision finding that the trustees breached their fiduciary duties. The Court's decision was a complete victory for the trustee defendants on their claim for indemnification and attorney fees.

Pacific Bells, et al. v. Inslee

In a case of first impression, a class of employers and employees challenging the WA Cares Act. The class is seeking to have the statute rendered void and unenforceable because it is preempted by ERISA, violates equal protection and the privileges and immunities clause, violates the ADEA and the OWBPA, violates state law and insurance law, and is an unauthorized MEWA. The case forced the state legislature to make substantive changes to the WA Cares Act and to delay the effective date of the statute by 18 months, which saved employees approximately $1.5 billion in payroll taxes. The case was ultimately dismissed at the federal level for lack of jurisdiction, but the case may be refiled in state court to challenge the constitutionality of the state tax on employees' wages.

ERIC v. City of Seattle

Representing the American Hotel and Lodging Association in an amicus brief supporting a certiorari petition to the U.S. Supreme Court. The brief argues that a Seattle Municipal Ordinance that requires an expenditure for healthcare is preempted by ERISA. The Court asked the DOL to respond to the request for certiorari. After the DOL expressed opposition to the request, certiorari was denied.

DaVita v. Virginia Mason Memorial

Prevailed on a 12(b)(6) motion to dismiss a Medicare Secondary Payer Act (MSPA) and ERISA class action. The Court agreed that DaVita's claim that it was underpaid for its dialysis services was not authorized by MSPA's private right of action. The decision was appealed to the 9th Circuit, which it reversed in part and remanded to the district court. Upon remand, the case was settled for a nominal sum.

*Denotes an attorney's experience prior to joining Davis Wright Tremaine

Specialized Insurance / Fiduciary Litigation

Honeycutt v. Phillips 66

Represents Phillips 66 in a case of first impression as to whether the client's Short-Term Disability Plan is a payroll practice or an ERISA plan exempt from Washington State's Family Care Act. A declaratory judgment action is pending in federal court. (Ongoing.)

Hawai'i Pacific Health v. TPA

Represented Hawai'i Pacific Health in arbitration of a malpractice claim against one of its TPAs. Obtained favorable settlement.

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, the matter 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.

AIMS v. Office of Insurance Commissioner

In a case of first impression, AIMS litigated the issue of the Association's status as an ERISA 3(5) employer. After prevailing on jurisdictional motions, the matter was settled on terms favorable to AIMS.

Washington Physicians Association v. Gregoire

Represented 12 health carriers against the State of Washington to challenge the validity of RCW 48.43.045, the Every Category of Provider statute. The district court ruled in favor of the health carriers on summary judgment, finding that RCW 48.43.045 was preempted by ERISA. The case was reversed by the 9th Circuit. A petition for Writ of Certiorari was filed, but the U.S. Supreme Court denied review.

Multiemployer Withdrawal Litigation

NSTec v. Construction Industry Pension Trust for Southern Nevada

Representing NSTec in a $23 million withdrawal liability claim caused by the expiration of a DOE nuclear facility contract. Raised defenses of change in entity, construction exemption, Section 4225 liquidation, and artificially low interest rate used to value the withdrawal liability. (Ongoing.)

Central States v. RTS

Represented RTS in a $43 million withdrawal liability claim against the Central States Teamsters Pension Trust. Case dismissed by district court on motions. Prevailed on arbitration resulting in a significant reduction in the withdrawal liability.

Hanford v. Battelle Memorial

Represented the Hanford Multi-Employer Pension Plan against Battelle, which argued that a contract between Hanford and Battelle excused it from paying withdrawal liability payments as dictated by the MPPAA statute. Parties initiated arbitration under standard MPPAA procedures, then Battelle filed a declaratory judgment action in federal court, which (if successful) would have circumvented the MPPAA protections afforded to Hanford. Secured dismissal of the federal action and attorney fees, shortly after which Battelle withdrew its dispute. Hanford obtained, and retained, all withdrawal liability payments owed by Battelle under the terms of the MPPAA.

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 the client, 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)

Bering Strait v. Alaska Teamsters

Represented Bering Strait in a governmental contractor withdrawal. Matter settled on favorable terms.

Retiree Medical Plan Litigation

Navlet v. Port of Seattle

Represented defendant, Port of Seattle, against class action allegations relating to the termination of the retiree medical benefits of union employees. Damages were alleged to be in excess of $10 million. Secured summary judgment on behalf of client. A direct appeal was taken to the Washington State Supreme Court and the case was settled on favorable terms after an adverse ruling by the Court.

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)

RLA / Grievance Litigation

Hirsh v. Alaska Airlines

Represented Alaska Airlines on an issue of plan interpretation of the method of calculating Final Average Compensation. Matter settled on favorable terms prior to arbitration.

Sullender v. Alaska Airlines

Prevailed in a case of first impression as to whether it was discriminatory to provide health coverage to same-sex domestic partners but not to opposite-sex domestic partners.

Air Line Pilots Association v. Alaska Airlines, Inc.

Represented Alaska Airlines 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. Obtained complete victory for client, which saved the pension plan millions of dollars a year in additional pension costs. (2009)

Bodner v. Hawaiian Airlines

Represented Hawaiian Airlines in a case of first impression as to whether a medical reimbursement plan must reimburse any claim of an airline pilot. The arbitrator ruled that past practice required the reimbursement.

Top Hat Litigation

Partner "X" v. Winston Cashatt

Defense counsel for Winston Cashatt in a claim for top-hat benefits. Prevailed on a statute of limitations defense.

IRS / DOL Audit Litigation

Northwest Administrators v. DOL

Represented Northwest Administrators in a claim for fiduciary breach with respect to the handling certain overpayments and underpayments. Matter was settled in the manner proposed by DWT.

Welfare & Pension Administration Services v. DOL

Represented Welfare & Pension Administration Services in a DOL audit and a reimbursement claim against its insurer, prevailing in both actions.

DOL v. "Y" Merchandising

Defense counsel for "Y" Merchandising in failure to amend plan and fiduciary breach for failing to diversify plan assets. DOL closed audit after DWT used EPCRS to cure plan violations and settled claims with participants on favorable grounds

DOL v. AHP

Represented AHP in DOL claims of prohibited transaction and fiduciary breach. DOL closed audit without adverse action after DWT used case law from the financial sector to invalidate the DOL's allegations.

Real Estate Co. v. IRS

In a case of first impression involving an affiliated service group, negotiated a closing agreement with the IRS. Obtained a nominal settlement of $37,500 for an $86 million case involving 111 brokers.

Admitted to Practice

Washington
Oregon
Alaska

Education

LL.M., Taxation, Boston University School of Law
J.D., Seattle University School of Law
- Associate Editor, Law Review
- Distinguished Law Graduate
B.A., Political Science, Washington State University, cum laude

Memberships & Affiliations

- 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

- Named one of "America's Leading Lawyers for Business" by Chambers USA in Employee Benefits & Executive Compensation Law (California), 2021-2025
- Selected by Best Lawyers as Seattle's "Lawyer of the Year" in Employee Benefits (ERISA) Law, 2012, 2025; in Litigation - ERISA, 2014, 2025
- Named as one of the "Best Lawyers in America" by Best Lawyers in Employee Benefits (ERISA) Law, 1993-present; in Litigation - ERISA, 2011-present
- Selected to "Washington Super Lawyers" in Employee Benefits, Thomson Reuters, 2003-2004, 2007-2024
- Fellow, The American College of Employee Benefits Counsel
- Selected to "Who's Who in American Law," "Who's Who in Practicing Attorneys," and "Who's Who in Emerging Leaders"