, a partner in O’Melveny’s Washington, DC office, represents financial services companies, including banks, insurers, investment managers, mortgage servicers and health care payors, in class action and other litigation seeking to aggregate consumer and other economic injuries. Brian is Co-Chair of the Firm’s Financial Services Practice and the Health Care and Life Sciences Practice. Brian also is active in the Firm’s Appellate Practice. He has been named by Chambers
and Legal 500
as a leading practitioner in the ERISA litigation and health care areas.
Illustrative Professional Experience
Investment and Retirement Plan Services
- Represent mutual fund complex in nationwide ERISA class action litigation challenging procedures for distributing “float” earnings on retirement plan contributions and redemptions.
- Represent life insurer and affiliates in nationwide ERISA class action litigation challenging fees collected on insurance separate account investment options.
- Represent mutual fund complex in litigation challenging the presence of proprietary investment options in 401(k) plan.
- Obtained dismissal of class action against retirement services providers in nationwide ERISA class action fiduciary litigation challenging the reasonableness of fee structures in thousands of separate 401(k) plan service arrangements.
- Represented directed trustee and mutual fund investment adviser in multiple separate ERISA actions seeking to impose fiduciary and non-fiduciary liability for allegedly excessive administrative and investment management fees, and allegedly substandard investment performance.
- Represented plan sponsor in ERISA fiduciary litigation raising claims of imprudence, and prohibited transactions, in connection with the selection of mutual fund investment options.
Health Plan Services
- Represent health insurer in nationwide ERISA class action challenging procedures used for recovery of claim overpayments.
Obtained dismissal of nationwide provider class action challenging administration of “pre-approval” requirements in health insurance policies.
- Obtained denial of class certification and summary judgment on named plaintiffs’ claims in nationwide ERISA class action challenging method for coordinating private health plan secondary payments with Medicare benefits.
- Obtained denial of class certification in nationwide class action alleging nondisclosure of “death spiral” in closed book of individual health policies.
- Obtained, on appeal, a reversal of a trial court order certifying a class of 250 hospitals on claims that a managed care organization serving as a contractor to the military’s TRICARE management activity had underpaid claims for outpatient claims over a 10-year period.
- Obtained dismissal of nationwide ERISA class action claims over the administration of out-of-network health insurance benefits.
- Obtained dismissal of nationwide class action consumer fraud claims concerning an insurer’s marketing and administration of fixed indemnity health policies.
- Obtained dismissal of multiple class actions challenging health insurer’s assertion of subrogation and reimbursement rights against tort recoveries by plan beneficiaries.
- Obtained dismissal, on jurisdiction and exhaustion grounds, of nationwide class action litigation against large Medicare Advantage contractor over alleged misclassification of Medicare Part B and Part D drugs.
- Obtained denial of class certification in nationwide class action challenging health insurers’ alleged operation of “silent PPO.”
- Served as lead counsel for a managed care company in a multi-defendant action alleging that managed care companies and full-service hospitals engaged in a group boycott of a new-entrant specialty hospital.
- Served as lead counsel for a large managed care company in In re Managed Care Litigation (MDL No. 1334; S.D. Fla.), encompassing a series of nationwide class actions on behalf of health plan subscribers and the physicians and other health care providers who serve them.
- Served as national coordinating counsel for a large, investor-owned hospital system in actions challenging pricing practices with respect to uninsured patients.
- Obtained summary judgment for a large managed care company in a statewide purported class action alleging a group boycott of the Medicare HMO program in California.
- Sustained removal to federal court, and obtained a judgment of dismissal on Medicare preemption grounds, on behalf of a health maintenance organization in a purported class action by members of failed independent practice associations seeking direct recoveries against insurers.
Consumer Financial Services
- Represent mortgage servicer in federal RICO litigation arising out of default mortgage servicing practices.
- Obtained dismissal of claims brought by municipalities against subprime mortgage lenders and servicers for the economic consequences of foreclosure.
- Represented large mortgage lender in nationwide settlement of claims by state attorneys general over alleged consumer protection violations in the origination of subprime and pay-option mortgages.
- Obtained partial denial of certification, and elimination of portion of class period, in securities class action litigation against large government-sponsored enterprise over withdrawal of enterprise’s financial statements.
- Obtained a denial of class certification on behalf of a series of property and casualty carriers in a purported RICO class action involving alleged pricing irregularities in commercial insurance policies.
- Represented a property and casualty carrier in a purported nationwide class action involving alleged wrongful failure to pay policyholder dividends.
- Obtained a denial of class certification and awards of summary judgment for an automobile manufacturer in a variety of consumer class actions raising purported claims of fraud surrounding the design and sale of sport-utility vehicles.
- Represented an automobile manufacturer in a statewide certified class action involving alleged ignition system defects.
- Obtained a denial of class certification for an automobile manufacturer in purported nationwide and statewide class actions raising across-the-board claims of race discrimination in employment, and obtained summary judgment against the class in the sole action in which certification was granted.
Honorable Antonin Scalia, US Supreme Court; Honorable Laurence H. Silberman, US Court of Appeals, District of Columbia Circuit Admitted to Practice,
US Supreme Court; US Courts of Appeals, Second, Fourth, Fifth, Eighth, Ninth, Eleventh, and District of Columbia Circuits; US District Court, District of Columbia Former Assistant to the General Counsel,
Office of the Secretary of the Army (1986-1991) Former Principal Deputy Associate Attorney General,
US Department of Justice (2003-2005); Recipient of the Edmund J. Randolph Award for Outstanding Justice Department Service (April 2005) Member,
American Bar Association; American Health Lawyers Association; American Law Institute