Russell Hirschhorn

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Russell L. Hirschhorn represents plan fiduciaries, trustees, sponsors and service providers on the full range of ERISA and state law benefit and fiduciary issues. From single plaintiff to litigation and arbitration to complex class action litigation, he provides practical guidance, develops unique litigation defense strategies and, when appropriate, mediates successful resolutions.

Russell represents clients across a wide array of publicly-held, multi-national companies and privately owned companies across a multitude of industries including, banking, finance and investments, pharmaceuticals, retail products and construction, to name just a few. In addition, he also counsels benefit plan clients on a host of compliance and federal and state government agency enforcement matters, including complex and lengthy investigations and audits by the U.S. Departments of Justice and Labor.

Russell is management co-chair of the American Bar Association Employee Benefits Committee. He also writes on cutting-edge ERISA litigation issues, serving as the co-editor of the Firm’s Employee Benefits & Executive Compensation Blog and as a contributing author and a past chapter editor to Employee Benefits Law (BNA Third Edition).

Latest Articles

Over the past several years, the ERISA plaintiffs’ bar has targeted university-sponsored 403(b) plans, arguing that the plan fiduciaries breached their fiduciary duties and engaged in prohibited transactions in connection with offering certain investment options and the administrative fees associated with such plans. Among other things, they have argued that the plan fiduciaries offered too many investment options, and that the investment options were imprudent because they were too expensive and/or underperformed. They also have…
The Ninth Circuit held that employees’ agreements to arbitrate all claims the employees may have did not extend to claims brought on behalf of two ERISA plans under ERISA § 502(a)(2). In so ruling, the Court explained that the employees could not agree to arbitrate claims on behalf of the plans in individual employment contracts because those employees cannot waive the plans’ rights. The Court also rejected an argument that the employees were, as a…
After nearly a decade in the making, the Department of Labor’s fiduciary rule appears to be officially dead.  On June 21st, the U.S. Court of Appeals for the Fifth Circuit issued its mandate that finalized its earlier decision vacating the rule—discussed here.  Along with the regulation that expanded the definition of investment fiduciary, the mandate wipes out the Best Interest Contract and Principal Transaction exemptions.  Recognizing that many fiduciaries have invested significant compliance resources…
On May 7, 2018, the DOL issued a Field Assistance Bulletin (“FAB”) addressing the Department’s enforcement policy on the fiduciary rule that was recently vacated by the Fifth Circuit.  Although the DOL has elected not to continue defending the rule before the Fifth Circuit, the FAB leaves the rule’s status in a holding pattern. Rather than scrapping the rule in toto, the FAB continues a temporary “no enforcement” policy until the DOL issues new…
Proskauer held its annual ERISAFEST conference on Thursday, April 26, bringing together over 200 legal counsel, plan fiduciaries and professionals involved in the administration of employee benefit plans to discuss recent developments and legal issues in the area of employee benefits. We were pleased to host a special lunch panel featuring Aliya Wong from the U.S. Chamber of Commerce, Jim Klein from the American Benefits Council, and Will Hansen from the ERISA Industry Committee for…
On March 23, 2018, the National Association for Fixed Annuities (“NAFA”) and the Department of Labor filed a Joint Stipulation of Dismissal of litigation involving the Department’s fiduciary rule in the District of Columbia Circuit.  NAFA had appealed a district court decision that dismissed NAFA’s challenge to the fiduciary rule.  The decision to drop that appeal comes a little over a week after the Fifth Circuit vacated the fiduciary rule.  As it stands now,…
In a 2-1 decision, the U.S. Court of Appeals for the Fifth Circuit vacated the Department of Labor’s fiduciary rule, including the expanded definition of “investment advice fiduciary” and the associated exemptions. The decision nullifies the Department’s 2016 regulation—at least in the Fifth Circuit, which includes Texas, Louisiana, and Mississippi, and arguably nationwide—but is not likely to be the last word on this topic.  The case is U.S. Chamber of Commerce v. DOL, No. 17-10238,…
The Tenth Circuit recently affirmed the Department of Labor’s authority to impose new conditions for exemption from prohibited transaction rules with respect to the sale of annuity contracts. The case related to the Department’s decision, as part of the 2016 “fiduciary rule,” to make sales of fixed indexed annuities ineligible for Prohibited Transaction Exemption 84-24, requiring instead that sales of those products satisfy the more onerous requirements of the new Best Interest Contract Exemption (“BIC…
In an opinion released yesterday, the Supreme Court reaffirmed that collective bargaining agreements (CBAs) must be interpreted according to “ordinary principles of contract law.” CNH Industrial N.V. v. Reese, No. 17-515, 2018 WL 942419 (U.S. Feb. 20, 2018).  In so ruling, the Court again rejected the Sixth Circuit’s inference from silence that CBAs vested retiree benefits for life. Three years ago, the Supreme Court decided M&G Polymers USA, LLC v. Tackett, 135 S. Ct. 926…
On November 27, 2017, the Department of Labor (“DOL”) finalized the delay of the applicability date for certain conditions for exemptions to the fiduciary rule until July 1, 2019. This delay was initially proposed in late August as described here. Although certain requirements have been delayed, the fiduciary rule’s broad definition of “fiduciary” and the “impartial conduct standards” continue in effect, subject to a good faith compliance standard. (Those requirements have been in effect…