Michael A. Valerio

Partner

Overview

Michael Valerio defends insurance companies, securities broker-dealers and other financial services industry clients in class actions and complex litigation, arbitration, and regulatory enforcement matters. A former in-house litigation and investigations counsel, Michael helps clients focus on their critical business objectives. He counsels on risk management and also frequently represents business and trade groups in significant appellate litigation. Michael is co-author of the fiduciary liability chapter in the recognized treatise, Handbook on ERISA Litigation, Fourth Edition (Wolters Kluwer Law & Business).

Trial and Appellate Litigation

An experienced litigator and class action defense lawyer, Michael represents clients at trial and in appeals throughout the country. He defends against claims brought under the Employee Retirement Income Security Act (ERISA), the Racketeer Influenced and Corrupt Organizations Act (RICO), and state unfair trade practices laws. He primarily handles fraud and contract-based claims involving the marketing and sale of life insurance, variable and fixed annuities, mutual funds, privately placed securities and retirement products. He also defends clients in class actions involving self-funded and insured health plans brought under ERISA and under the Mental Health Parity and Addiction Equity Act of 2008. Michael is regularly called upon to represent industry associations as amicus counsel in cases involving high-impact ERISA fiduciary liability, employee benefits and class certification issues.

Michael is also experienced in matters involving alleged misappropriation of trade secrets, antitrust and unfair competition claims, high-exposure product liability and insurance coverage issues, federal procurement fraud, professional liability, shareholder disputes and financial reporting issues.

Risk Management and Compliance

Michael also counsels insurance and financial services industry clients on risk management and supervisory issues relating to retail sales, wholesale distribution, product development and other business practices. He has recently focused on issues associated with the U.S. Department of Labor’s now-vacated “investment advice fiduciary rule” and the SEC’s “best interest” regulation applicable to broker-dealers.

Representative Experience

  • Teets v. Great-West Life & Annuity Ins. Co., 921 F.3d 1200 (10th Cir.), cert. denied, 140 S. Ct. 554 (2019) (amicus counsel in support of appellee/prevailing party)
  • Carson v. Allianz Life Ins. Co. of N. Am., 194 A.3d 1214 (Conn. App. Ct. 2018), cert. denied, 207 A.3d 27 (Conn. 2019)
  • H.H. v. Aetna Life Ins. Co., 342 F.Supp. 3d 1311 (S.D. Fla. 2018)
  • Teets v. Great-West Life & Annuity Ins. Co., 286 F. Supp. 3d 1192 (D. Colo. 2017) (amicus counsel in support of movant/prevailing party)
  • Welp v. Cigna Health & Life Ins. Co., 2017 WL 3263138 (S.D. Fla. July 20, 2017)
  • McCaffree Fin. Corp. v. Principal Life Ins. Co., 811 F.3d 998 (8th Cir. 2016) (amicus counsel in support of appellee/prevailing party)
  • Rochow v. Life Ins. Co. of N. Am., 790 F.3d 364 (6th Cir. 2015) (amicus counsel in support of appellant/prevailing party)
  • Merrimon v. UNUM Life Ins. Co. of Am., 758 F.3d 46(1st Cir.2014) (amicus counsel in support of appellant/cross-appellee/prevailing party)
  • Edmonson v. Lincoln National Life Ins. Co., 725 F.3d 406 (3d Cir. 2013) (amicus counsel in support of appellee/prevailing party)
  • Leimkuehler v. American United Life Ins. Co., 713 F.3d 905 (7th Cir. 2013) (amicus counsel in support of appellee/prevailing party)
  • Negrete v. Allianz Life Ins. Co. of N. Am., 926 F. Supp. 2d 1143(C.D. Cal. 2013)
  • Negrete v. Allianz Life Ins. Co. of N. Am., 2013 WL 6535164(C.D. Cal. Dec. 9, 2013)
  • Negrete v. Allianz Life Ins. Co. of N. Am., 287 F.R.D. 590 (C.O. Cal. 2012)
  • SSR II, LLC v. John Hancock Life Ins. Co. (U.S.A.), 2012 N.Y. Slip Op. 51880(U) [37 Misc. 3d 1204 (A)] (N.Y. Supr. Ct. Sept. 28, 2012)
  • Nationwide Life Ins. Co. v. Haddock, 460 Fed. Appx. 26 (2d Cir.2012) (amicus counsel in support of appellant/prevailing party)
  • United States ex rel. Loughren v. UNUM Group, 613 F.3d 300 (1st Cir. 2010) (amicus counsel in support of appellant/prevailing party)
  • Mooney v. Allianz Life Ins. Co. of N. Am., 2010 WL 419962 (D. Minn. Jan. 29, 2010)
  • Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 974 A.2d 859 (Del. Supr. ct. 2009)
  • City of Chattanooga v. Hartford Life Ins. Co., 2009 WL 5184706 (D. Conn. Dec.22, 2009)
  • Northwestern Mutual Life Ins. Co. v. Gil, 351 Fed. Appx. 515, 2009 WL 3601617 (2d Cir. Nov. 3, 2009)
  • Northwestern Mutual Life Ins. Co. v. Gil, 2009 WL 276086 (D. Conn. Feb. 5, 2009)
  • Independence Ins. Serv. Corp. v. Hartford Life Ins. Co., 472 F.Supp.2d 183 (D. Conn. 2007)
  • Perfection Corp. v. Lochinvar Corp., 812 N.E.2d 465 (111. App. Ct. 2004)

Insurance, Retirement and Securities Industry Representative Experience

  • Represented consortium of financial product marketing organizations in litigation against United States Department of Labor to enjoin and vacate key aspect of Department's "fiduciary rule” regulatory regime
  • Represented life insurer in nationwide RICO and state unfair trade practices class action litigation relating to sales of certain fixed-interest and equity-indexed annuity products
  • Advised and represented private placement issuers and distributors in individual and class action matters relating to alleged losses attributable to Madoff "feeder funds" and other private/hedge fund investments following world financial crisis
  • Advised and represented major asset manager and fund complex regarding claims relating to losses in securities lending collateral investment pool due to asset-backed securities and credit market exposure
  • Represented insurance industry client in litigation involving alleged fraud in the sale of broad-based corporate-owned life insurance to major national retailer
  • Represented state life and health insurance guaranty association in multi-party dispute relating to responsibility for certain liabilities associated with insurer insolvency
  • Represented service provider in ERISA class action litigation involving alleged “revenue sharing" fees received from mutual fund investment advisers and/or distributors in connection with 401(k) retirement plan business
  • Represented government retirement plan service provider in putative class action asserting state law claims relating to service provider's receipt of allegedly improper “revenue sharing" fees received from mutual fund investment advisers and/or distributors
  • Represented variable annuity issuer in action alleging violations of Securities Exchange Act Section lO(b)/Rule lOb-5 and state statutory and common law claims
  • Represented securities broker-dealer and annuity issuer in multiple actions relating to alleged fraud scheme and thefts by former registered representative and insurance agent
  • Advised financial services client in connection with threatened state securities law charges relating to alleged failure of affiliates to obtain state licensing as broker-dealers or investment advisers
  • Represented broker-dealer in FINRA investigation involving alleged market timing and record-keeping violations
  • Represented broker-dealer in FINRA arbitration involving sale of funding vehicles for 412(i) defined benefit retirement plan and advised broker-dealer on response to subsequent regulatory investigation
  • Represented broker-dealer in parallel SEC/FINRA/state securities department investigation and related civil litigation involving large-scale fraud and embezzlement scheme by former registered representative
  • Represented major accounting firm and audit partner in SEC investigation involving financial reporting by publicly traded accounting firm client
  • Represented publicly traded multi-level marketing company in federal securities fraud and state "anti-pyramid" and unfair trade practices class action litigation

Health Care Industry Representative Experience

  • Represented health insurers/claims administrators in putative nationwide ERISA class actions alleging violations of Mental Health Parity and Addiction Equity Act of 2008
  • Represented insurance industry client in dispute with contracted marketing organization associated with client's exit from the long-term care insurance business
  • Represented administrator of self-funded and insured health plans in ERISA and state law claims litigation arising from fraud investigation involving large out-of- network provider
  • Represented administrative service provider and stop-loss insurance carrier in dispute with sponsor of self-funded employee health benefit plan regarding responsibility for outstanding claims under terminated contract
  • Acted as special appellate counsel to primary and excess professional liability carriers in coverage action relating to insured managed care company's settlement of underlying ERISA and
  • RICO class action litigation brought by health plan members challenging methodology for calculating out-of-network benefits

Business and Trade Group Representative Experience

  • Represented industry group as amicus curiae in appeal before the United States Court of Appeals for the Eighth Circuit in support of district court's grant of motion to dismiss in ERISA class action litigation involving allegedly excessive management fees charged by 401(k) retirement plan service provider
  • Represented industry group as amicus curiae in appeal before the United States Court of Appeals for the First Circuit relating to district court's fiduciary liability ruling and class-wide monetary award in ERISA litigation involving a group life insurer's use of retained asset accounts ("RAAs") to pay life insurance benefits
  • Represented industry and business/employer groups as amicus curiae in appeal before the United States Court of Appeals for the Sixth Circuit relating to district court's profit disgorgement award against claim administrator/group insurer in ERISA disability benefits litigation
  • Represented industry group as amicus curiae in appeal before the United States Court of Appeals for the Seventh circuit in support of district court 1 s grant of summary judgment in ERISA class action litigation involving alleged "revenue sharing" fees received by 401(k) retirement plan service provider
  • Represented industry group as amicus curiae in appeal before the United States Court of Appeals for the Third Circuit in support of district court's grant of summary judgment in ERISA class action litigation involving a group life insurer 1 s use of RAAs to pay life insurance benefits
  • Represented industry group as amicus curiae in appeal before the United States Court of Appeals for the First Circuit relating to district court's class certification order in ERISA litigation involving a group life insurer's use of RAAs to pay life insurance benefits
  • Represented industry and employer groups as amicus curiae in appeal before the United States Court of Appeals for the First Circuit in federal civil False Claims Act litigation involving private long-term disability insurance industry practices relating to insureds' applications for Social Security Disability Insurance (SSDI) benefits
  • Represented industry group as amicus curiae before the United States Court of Appeals for the Second Circuit in support of 40l(k) retirement plan service provider's petition for interlocutory appellate review, pursuant to Federal Rule of Civil Procedure 23(f), of district court's order certifying nationwide plan administrator class under Rule 23(b)(3) in ERISA “excessive fee" litigation
  • Represented industry group as amicus curiae in appeal before the United States Court of Appeals for the Second Circuit relating to district court's order certifying nationwide plan trustee class under Rule 23(b)(2) in ERISA litigation involving alleged "revenue sharing" fees received by 40l(k) retirement plan service provider
  • Represented industry group as amicus curiae in summary judgment proceedings before federal district court and in subsequent appeal by plaintiff to the United States Court of Appeals for the Tenth circuit in ERISA class action litigation involving insurance company/40l(k) retirement plan service provider's allegedly improper retention of general account investment earnings in connection with guaranteed/fixed-rate investment option

Credentials

Bar Admissions

Connecticut
District of Columbia
Maryland

Court Admissions

U.S. Court of Federal Claims
U.S. Court of Appeals for the First Circuit
U.S. Court of Appeals for the Tenth Circuit
U.S. Court of Appeals for the Second Circuit
U.S. Court of Appeals for the Third Circuit
U.S. Court of Appeals for the Seventh Circuit
U.S. District Court for the District of Connecticut
U.S. District Court for the District of Columbia
U.S. District Court for the District of Maryland
U.S. District Court for the Southern District of New York

Education

Johns Hopkins University
B.A.

The Catholic University of America, Columbus School of Law
J.D. Salutatorian, Vernon X. Miller Scholar, Catholic University Law Review, American Jurisprudence Awards in Commercial Transactions and Criminal Law

Insights & Events

Other Perspectives

Publications

  • Co-author, Chapter 4 (Fiduciary Liability), Handbook on ERISA Litigation, Fourth Edition (Wolters Kluwer Law & Business/Aspen Publishers)
  • Author, "High Court's Amgen Ruling Reaffirms Heightened Pleading Standard for ERISA Stock-Drop Suits," Washington Legal Foundation, Vol. 24, No. 2 (March 2016)
  • Author, "SCOTUS v. the Ninth Circuit on Failure to Enforce ERISA Stock-Drop Pleading Standard," ABA Section of Litigation (February 2016)
  • Co-author, “Life Insurer Prevails in First Circuit Appeal in ERISA Class Action Challenging Retained Asset Accounts,” ABA Tort Trial & Insurance Practice (October 2014)
  • Co-author, "What Fifth Third Bancorp v. Dudenhoeffer May Mean for ERISA Stock-Drop Litigation,” ABA Section of Litigation (August 2014)
  • Co-author, "The Moench Presumption in ERISA Stock-Drop Litigation,” ABA Class Actions & Derivative Suits (CADS) Report (Spring 2011)
  • Co-author, "Recent Developments in ERISA Plan Amendment Jurisprudence,” DRI Life, Health and Disability News (June 2010)
  • Author, "Putnam Fiduciary Trust Company: A Seaboard Report for Regulated Entities,” Investment Lawyer (June 2006)

Past Events

  • Key Regulatory & Risk Management Issues to Watch in the Retirement Product Market, Insured Retirement Institute (IRI) Webinar, Washington, DC (February 6, 2019)
  • “The Hottest Litigation Topics – A Year in Review,” Insured Retirement Institute’s Action 18 Conference (May 10, 2018)
  • “Update on ERISA Retirement Plan Litigation – Including Impact of the DOL Rule,” Insured Retirement Institute (IRI) Webinar, Washington, DC (January 17, 2018)
  • “The Hottest Litigation Topics from the Year in Review,” Insured Retirement Institute (IRI) Government, Legal & Regulatory Conference 2017, Washington, DC (June 12, 2017)
  • “DOL Fiduciary Rule Implementation Workshop,” Insured Retirement Institute (IRI) Government, Legal & Regulatory Conference 2016, Washington, DC (June 8, 2016)
  • “Litigation and Enforcement under the DOL Fiduciary Rule and the BIC Exemption,” Insured Retirement Institute (IRI) Government, Legal & Regulatory Conference 2016, Washington, DC (June 6, 2016)
  • “Recent Developments in Annuity and Life Insurance Litigation,” Insured Retirement Institute (IRI) Webinar, Washington, DC (May 11, 2016)
  • “Answering The ‘Top Ten’ Key Questions About The DOL Fiduciary Rule,” Insured Retirement Institute (IRI) Webinar, Washington, DC (March 8, 2016)
  • “Litigation Forum: FINRA Arbitration and Enforcement Actions,” Insured Retirement Institute (IRI) Government, Legal & Regulatory Conference 2014, Washington, DC (July 2014)
  • “Recent Developments and Trends in Retirement Plan Litigation,” Insured Retirement Institute (IRI) Government, Legal & Regulatory Conference 2013, Washington, DC (June 2013)
  • “Recent Developments and Trends in Retirement Plan Litigation,” Insured Retirement Institute (IRI) Government, Legal & Regulatory Conference 2012, Washington, DC (June 2012)
  • American Council of Life Insurers (ACLI) Quarterly Litigation Conference Call (March 2012)
  • Life Litigation Legal Summit, Simsbury, CT (May 2008)

Leadership & Community

Pro Bono

  • Clemency Project 2014 — Volunteer Attorney

Professional Associations

  • American Bar Association — Litigation Section (Securities Litigation Committee), Tort Trial & Insurance Practice Section
  • District of Columbia Bar

Civic Activities

  • Simsbury Land Trust
  • Volunteer Youth Baseball and Basketball Coach
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