A House Republican called on the Labor Department’s inspector general on Nov. 21 to investigate allegations that the DOL shared pension plans’ confidential information with lawyers looking to file class action lawsuits against their fiduciaries.
Rep. Virginia Foxx, R-N.C., who leads the House Education and the Workforce Committee, said the committee “has learned that the Department of Labor (DOL) shared confidential information involving at least six employee benefit pension plans with a plaintiffs’ attorney,” according to the Nov. 21 letter addressed to DOL Inspector General Larry D. Turner.
The DOL’s Employee Benefits Security Administration gathered such information during an investigation, according to the letter, and Michael R. Hartman, ERISA counsel for DOL’s New York Regional Solicitor’s Office, shared the information with Cohen Milstein Sellers and Toll, “a law firm known for pursuing class action lawsuits involving benefits plans, to use in a lawsuit against a fiduciary of the plans,” Foxx wrote.
"The Department is aware of Congresswoman Foxx’s request to the Office of the Inspector General," a DOL spokesperson said in an email. "Common interest agreements are a well-established legal tool that recognize existing legal privileges. They are used by government and private litigants alike."
A spokesperson for Cohen Milstein made a similar point, as the firm said in a statement, "common interest agreements between DOL and the private sector are common, legal and have been entered into by different administrations for decades."
"The only issue before the federal court is a discovery dispute concerning DOL’s work product," the spokesperson continued. "Any attempt by a defendant in this matter to paint common interest agreements between DOL and retirement participants as inherently suspect is as transparent as it is irresponsible.”
Foxx letter
“DOL appears to be working in concert with plaintiffs’ attorneys…by conducting a fishing expedition under the guise of an EBSA investigation and then supplying confidential information to plaintiffs’ attorneys for use in private litigation against plan fiduciaries,” Foxx said in the letter, contending that doing so evades the limits on discovery dictated by the Federal Rules of Civil Procedure.
When a retirement plan fiduciary shares information with EBSA for an investigation, the fiduciary “should have no reason to fear the information will be back-channeled to a class action lawyer and used against it,” Foxx wrote. “Indeed, both the Freedom of Information Act and DOL procedures contain mechanisms protecting confidential information collected during an investigation from disclosure.”
Foxx requested in her letter that Office of the Inspector General investigate and publish a public report on the matter, specifically examining the number of times the Labor Department has shared information from investigations with law firms, the names of those law firms, and other related information.
