James P. McElligott Jr. Counsel

Jay advises and defends private and publicly held corporations, public agencies, benefit plans and fiduciaries concerning employee benefits, executive compensation, and related labor and employment issues, including ERISA litigation, class actions, claims for employee benefits and executive compensation, breach of fiduciary duty (including stock-drop class actions), multiemployer plans and withdrawal liability, retirement medical, benefits in bankruptcy, and Pension Benefit Guaranty Corporation issues.

Jay is a fellow of the College of Labor and Employment Attorneys. He regularly publishes and lectures on employment, benefits and compensation issues. He has been interviewed by the Wall Street Journal, New York Times, Baltimore Sun, Daily Labor Reporter, Pension and Benefits Week, Computer Law, Tax Report, CBS Business Watch, Business Insurance, Chicago Sun Times, Richmond Times-Dispatch, MicroSoft Network, WashTech.com, Employment and Labor Lawcast, and other publications.

Experience

Recent Appellate Cases

Carter v. Commissioner and A. Finkl & Sons Company, 2014 U.S. App. LEXIS 5476 (7th Cir. Mar. 25, 2014). The judicial doctrine of collateral estoppel bars a group of pension plan participants from challenging a plan amendment as a violation of the Employee Retirement Income Security Act's anti-cutback provisions.

Carter v. Pension Plan of A. Finkl, 654 F.3d 719, 2011 U.S. App. LEXIS 16824 (7th Cir. Aug. 15, 2011). Representation of plan and plan fiduciaries regarding anti-cutback and benefit claims by pension plan participants for immediate benefits based on alleged termination of pension plan.

In re Citigroup Pension Plan ERISA Litig., 2009 WL 3335910 (2d Cir. Oct. 19, 2009). Amicus Brief filed on behalf of American Benefits Council in support of CitiGroup’s successful appeal of cash balance plan issues, involving application of ERISA §204(b) anti-backloading rules and ERISA §204(h) notice; in reversing the district court and ruling in favor of CitiGroup.

E.I. DuPont de Nemours & Co. v. Ampthill Rayon Workers, Inc., 290 Fed. Appx. 607 (4th Cir. 2008), cert. denied 2009 U.S. LEXIS 953 (2009). Litigation as to whether union grievance over amendments to employee benefits plans was subject to arbitration clause in collective bargaining agreement.

Bullock v. Rehrig Int'l, 211 Fed. Appx. 198 (4th Cir. 2006), cert. denied 127 S.Ct. 2275 (2007). Representation of employer on Title VII claims of discriminatory discharge and sexual harassment.

Piner et al. v. E.I. du Pont de Nemours & Co., No. 00-1082, 2000 U.S. App. LEXIS 29016 (4th Cir. 2000), aff'g No. 7:99-cv-48-F(1) (E.D.N.C. 1999). Representation of employer regarding class action claims under ERISA for early retirement incentive benefits, breach of fiduciary duty, and claims for statutory penalties for failing to produce plan documents.

Shores et al. v. Lucent Technologies, Inc., No. 99-1155, 2000 U.S. App. LEXIS 455 (4th Cir. 2000), aff'g No. 3:98cv300 (E.D.Va. 1999). Representation of employer against 56 plaintiffs seeking benefits, statutory penalties, and damages for alleged § 510 discrimination.

Recent trial court cases

Dominion Res., Inc. v. Estate of Estate of Griffin, 2016 U.S. Dist. LEXIS 99696 (E.D. Va. July 29, 2016) (plan is not bound by state court determination that a domestic relations order is a QDRO).

Halldorson v. Wilmington Trust Ret. & Institutional Servs. Co., 2016 U.S. Dist. LEXIS 55704 (E.D. Va. Apr. 22, 2016) (plaintiff barred from pursuing ESOP civil action because of a Separation Agreement and General Release).

Laborers' Dist. Council of Va. Health & Welfare Trust Fund v. Cleveland Cement Contrs., Inc., 2014 U.S. Dist. LEXIS 34032, 2014 BL 73250 (W.D. Va. Mar. 17, 2014) (construction company effectively repudiated its prehire agreement and wasn't subject to a collective bargaining agreement that would have required the company to pay contributions for all employees)

In re: BP ERISA Litigation, Case Nos. 4:10-md-2185 and 4:10-cv-4214 (S.D. Tex. May 27, 2011). Representation of corporate officer and investment committee member in pending stock drop case.

Tyco Int'l, Ltd. v. Kozlowski, 2011 U.S. Dist. LEXIS 55797 (S.D.N.Y. May 24, 2011). Representation against former CEO’s motion for certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) and for entry of partial final judgment on his ERISA counterclaims pursuant to FRCP 54 (b).

Baxter v. Sun Life Assur. Co., 713 F. Supp. 2d 766 (N.D. Ill., 2010). Expert witness testimony on characterization of settlement proceeds for tax purposes.

Tyco Int'l, Ltd. v. Kozlowski, 756 F. Supp. 2d 553 (S.D.N.Y. 2010), Representation of company regarding former CEO’s compensation earned during the period of executive’s disloyalty to the company and executive’s counterclaims against the company.

Carter v. Pension Plan of A. Finkl, 1:08-cv-07169 (N.D. Ill. 2010). Representation of plan and plan fiduciaries regarding anti-cutback and benefit claims by pension plan participants for immediate benefits based on alleged termination of pension plan.

Pension Benefit Guaranty Corporation v. LaSalle Bank, N.A., Case: 1:08-00271 (D. D.C. 2009). Representation regarding PBGC decision that bank became member of borrower’s controlled group and was liable for unfunded pension liability.

In re Tyco Int'l Ltd., Multidistrict Litig., Case No. 02-md-1335-PB, (D.N.H.). Class action settlement of “stock drop” case alleging breach of ERISA fiduciary duty in including employer stock as option in participant-directed 401(k) plan.

Hobson et al v. E.I. duPont de Nemours and Company, Inc. 3:09-cv-474 (E.D. Va. 2009). Representation of DuPont regarding claims of breach of fiduciary duty and benefit claims based on alleged errors in computer calculation process.

Roberts v. Dominion Res., Inc., 2008 U.S. Dist. LEXIS 31183 (D. Conn. 2008). Representation of employer regarding ERISA benefits claim.

Flickinger v. E.I. du Pont de Nemours & Co., 466 F. Supp. 2d 701 (E.D. Va. 2006). Representation of employer regarding ERISA Section 510 and other claims.

Dalesandro v. Int'l Paper Co., 2005 U.S. Dist. LEXIS 44896 (S.D. Ohio 2005). Class action settlement over ERISA severance claims.

Hinkle v. ABB Process Analytics, Inc., CA 05:04-0662 (S.D. W.Va. February 24, 2005). Class action pension claims for failure to exhaust administrative remedies.

Silvernail v. Ameritech Corporation, CA 03-3291 (C.D. Ill. February 1, 2005). Representation of employer and retirement plan regarding plaintiff's claim for pension benefits based on claim that plan’s vesting rules did not comply with ERISA §203.

Skiles v. E. I. DuPont de Nemours & Co., No. 1:03-CV-239, (E.D. Tenn. January 25, 2005). Representation of employer and plan regarding ERISA claims for life insurance benefits, breach of fiduciary duty, and estoppel.

Smith v. Logan, CA No. 3:04CV581 ___ F.Supp. 2d ____ (E.D. Va. November 5, 2004). Representation of defendant regarding claims for tortious interference by supervisor with enhanced early retirement benefits.

Graham v. Pactiv Corporation Benefits Committee, 301 F. Supp. 2d 483 (E.D. Va. 2004). Representation of retirement plan and fiduciary regarding participant’s claims for higher benefits, breach of fiduciary duty, estoppel, and failure to produce documents.

Smith v. Logan, 363 F. Supp. 2d 804 (E.D. Va. 2004). Representation of defendant regarding claims for tortious interference by supervisor with enhanced early retirement benefits.

Goodman v. E.I. du Pont de Nemours & Company et al., No. 3:00-CV-14-J-25TJC (M.D.Fla. 2001). Representation of employer and benefit plans regarding claims of contingent workers for benefits and damages under ERISA § 510.

Noble v. Reynolds Metals Pension Plan for Hourly Employees, No: 3:00CV629 (E.D.Va. 2001). Representation of pension plan regarding claims under ERISA for special "shutdown" pension benefits under collectively bargained agreements.

  • Harvard Law School, JD, cum laude, Member and Note Editor, Harvard Journal on Legislation, 1973
  • University of Illinois at Urbana-Champaign, BA, with Highest Honors, Phi Beta Kappa, 1970

President, Central Virginia Employee Benefits Council, 2006-2007

President, Richmond Chapter, Federal Bar Association, 1987-1988

Member, US Chamber of Commerce Employee Benefits Committee, 2005-2018

Member, Section of Labor Relations and Employment, Section of Taxation; Executive Committee, Section of Young Lawyers, 1979-1981, Virginia Bar Association

Member; Chair, Personnel Committee, 1989-1994; Chair, 1994-1995; Board Member,1990-1996, Richmond Chapter, American Red Cross

Management Co-Chair, Subcommittee on Benefit Claims, Employee Benefits Committee, Section of Labor and Employment Law; American Bar Association, 2000-2012

Member, Employee Benefits Committee, Section of Taxation, American Bar Association

Board Member, 1976-1996; President, 1980-1982, Virginia Home for Boys

Chair, Section of Employment Law, Virginia Association of Defense Attorneys, 1992-1994

Member, Leadership Metro-Richmond

  • Virginia
  • U.S. Court of Appeals for the 4th Circuit
  • U.S. Court of Appeals for the 6th Circuit
  • U.S. Court of Appeals for the 7th Circuit
  • U.S. District Court for the Eastern District of Virginia
  • U.S. District Court for the Western District of Virginia
  • U.S. Supreme Court
  • U.S. Tax Court

Named "Lawyer of the Year," Employee Benefits (ERISA) Law, Richmond, Best Lawyers, 2015

Selected for inclusion in The Best Lawyers in America, Employee Benefits (ERISA) Law, Employment Law - Management, Labor Law - Management, Litigation - ERISA, Litigation - Labor & Employment Woodward/White, Inc, 1995-2019

Named to "Virginia Super Lawyers," Employee Benefits/ERISA, Employment & Labor, Super Lawyers, Thomson Reuters, 2007-2018

Named to "Legal Elite," Labor/Employment, Virginia Business, 2006-2007

Selected for inclusion in America's Leading Lawyers for Business, Labor & Employment: Employee Benefits & Compensation, Virginia, Chambers USA, 2008-2018

Selected for inclusion in Who’s Who Legal: Pensions & Benefits, 2015, 2016

AV Preeminent-Rated, Labor & Employment Law, Martindale-Hubbell

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