Nina Wasow is a partner in the firm. Ms. Wasow litigates individual disability and pension benefits claims as well as class action breach of fiduciary duty claims under ERISA, including claims on behalf of participants and beneficiaries in employee stock ownership plans (ESOPs) and investors in Guaranteed Investment Contracts (GICs) and other stable value products. She has litigated extensively against service providers to retirement and welfare benefit plans that charge excessive fees, misrepresent or fail to disclose their fee structures, or use plan assets for their own benefit.
She also frequently advises clients on employment issues such as negotiation of severance agreements, requesting workplace accommodation versus seeking disability benefits, and obtaining or maintaining disability or retirement benefits while continuing to work.
Ms. Wasow was previously a shareholder at Lewis, Feinberg, Lee & Jackson, P.C. She clerked for Judge Susan Graber of the United States Court of Appeals for the Ninth Circuit and Judge Saundra Brown Armstrong of the United States District Court for the Northern District of California.
- Teets v. Great-West Life & Annuity Insurance Company
- Moon v. Rush
- Clarke v. Valley Aggregate Transport, Inc.
- Schuett v. FedEx
- Tribune Company Employee Stock Ownership Plan Lawsuit
Dan Feinberg, Todd Jackson and Nina Wasow recovered $32 million in pension benefits for employees of the Tribune Company. The case involved an Employee Stock Ownership Plan (ESOP). ESOPs are retirement plans that invest primarily in employer stock and are supposed to motivate employees by giving them a stake in the companies where they work. Unfortunately, employers sometimes manipulate the complex legal rules for ESOPs so that the employees see little or no benefit from the ESOP. Employees at Tribune Company – which owned the Chicago Tribune, L.A. Times, WGN, and the Chicago Cubs – were left holding worthless stock after a leveraged buyout using their ESOP pushed Tribune into bankruptcy in 2008. GreatBanc, the ESOP trustee, had bought $250 million of Tribune stock with the employees’ ESOP funds as part of the leveraged buyout.
Dan Feinberg, Todd Jackson, and Nina Wasow led a legal team that represented these employee shareholders in a class action suit against GreatBanc and other ESOP fiduciaries over three years of aggressive litigation in the U.S. District Court for the Northern District of Illinois.
The District Court granted summary judgment in 2010 against GreatBanc, finding that the ESOP’s purchase of unregistered Tribune stock was an illegal transaction under the Employee Retirement Income Security Act of 1974 (ERISA) because there were other Tribune shares trading on the stock market. Even so, in 2011, the defendants tried to cap the damages they owed at $2.8 million or $15.3 million, arguing that the ESOP was similar to a gift from the employer to the employees. The class of employee shareholders responded that the ESOP’s entire payment for Tribune stock should be considered in the Court’s damages calculation, even though the ESOP used a loan to purchase the stock.
The District Court agreed with the employee shareholders’ argument. In January 2012, the Court approved a settlement which paid the ESOP $32 million in damages. The settlement payment was then allocated to the class members’ 401(k) plan accounts. There are several published decisions in the case: Neil v. Zell, 677 F.Supp. 2d 1010 (N.D. Ill. 2009); Neil v. Zell, 753 F.Supp. 2d 724 (N.D. Ill. 2010); and Neil v. Zell, 767 F.Supp. 2d 933 (N.D. Ill. 2011).
- Fernandez v. K-M Holding Co., Inc.
Todd Jackson, Dan Feinberg and Nina Wasow recovered $55 million in pension benefits for employees of Kelly Moore Paint who participated in the company ESOP. Using their expertise in ERISA law and their experience in securing full benefits for employees whose companies create ESOPs, these Feinberg, Jackson, Worthman & Wasow attorneys reached a settlement of the case after hard-fought litigation.
ESOPs are intended to motivate employees by giving them a stake in the companies where they work. Like a 401(k) plan, an ESOP holds stock for the benefit of the employees. But ESOPs only hold stock of the employer company, and employees can’t move their stock to any other investment until after they leave the company or retire.
The Plaintiffs alleged, on behalf of a class, that the stock the ESOP bought for employees was overpriced because the valuation of the stock ignored major legal liabilities for Kelly-Moore products that had contained asbestos until the late 1970s.
After the employees bought the stock it suffered a steep decline in value, shocking employee stockholders who were led to believe their company stock was a safe investment by their ESOP trustee and that the ESOP had paid a fair price. Trustees are required by ERISA to act in the interests of the ESOP. Dan Feinberg, Todd Jackson, and Nina Wasow represented clients who alleged in 2006 that K-M Industries breached their fiduciary duties under ERISA by purchasing employer stock at an inflated price.
Complicating this case, the ESOP switched trustees between the stock purchase and when the lawsuit was filed. The new trustee had an indemnification agreement with the company, but the Court ruled that the indemnification agreement was impermissible because the company was partially owned by the ESOP, so any payment by the company would have reduced the value of the stock. Attorneys for the employee stockholders fought to keep the new trustee from getting let off the hook for its own errors – and letting the plan beneficiaries bear the cost. This key ruling helped clarify a murky area of ERISA law.
Plaintiffs settled with K-M Industries, the family trust of its founder William Moore, and the successor trustee of the ESOP, North Star Trust Company, for a total of $55 million. In addition to the sizeable settlement, the litigation resulted in two published decisions: Fernandez v. K-M Industries Holding Co., 585 F.Supp.2d 1177 (N.D. Cal. 2008), and Fernandez v. K-M Industries Holding Co., 646 F. Supp. 2d 1150 (N.D. Cal. 2009).
- Rozo v. Principal Life Insurance Company
Contributing author to Sacher et al., Employee Benefits Law (BNA Books).
Ms. Wasow has written for the ABA Labor and Employment Law Section, Employee Benefits Committee Newsletter and BNA Pension & Benefits Daily.
Frequent speaking engagements including: annual meeting of the ABA’s Tort, Trial and Insurance Practice Section; ABA Employee Benefits Committee ERISA Basics conference; ABA Employee Benefits Committee National Institute on ERISA Litigation; ABA Employee Benefits Committee midwinter meetings; the National Employment Lawyers Association convention; ABA Labor & Employment Law Section conference; and numerous webinars.
