Professional Experience:

Jeanne L. Bakker is a partner in the Employee Benefits and Executive Compensation practice group at Montgomery, McCracken, Walker and Rhoads, LLP.

Ms. Bakker applies her extensive ERISA experience as both ERISA counselor and ERISA litigator.  As an ERISA counselor, Ms. Bakker advises national and international employers regarding qualified retirement plans, non-qualified deferred compensation arrangements, and executive incentive plans.  An experienced ERISA litigator, Ms. Bakker represents insured and self-insured employers and providers in ERISA fiduciary duty matters; benefit claims for qualified and non-qualified retirement benefits and welfare benefits; and, benefit discrimination disputes. 

ERISA Counselor:  Ms. Bakker advises national and international employers regarding the implementation, operation, and compliance of qualified retirement plans, including cash balance plans, profit sharing and 401(k) plans, money purchase pension plans, and traditional defined benefit plans.  Ms. Bakker works with in-house counsel, plan administrators, benefits managers, and human resource directors regarding the design and implementation of benefits claims procedures; compliance with the ever changing statutory and regulatory environment that governs employee benefit plans; and, day-to-day administration, operation, compliance and communication of pension and welfare plans.  A representative sample of qualified plan projects follow:

• Prepared a new multi-document defined benefit pension plan with traditional defined benefit and cash balance components that reflected major design changes recommended by the client's actuary;
• Converted a defined benefit plan to a defined contribution plan through a spin-off, termination and transfer of benefits; this process required a plan amendment to the original defined benefit plan document that would continue for some employees, a new cash balance plan for the spun off employees, and preparation of all employee communications, election forms as well as the necessary IRS and PBGC filings;
• Prepared a plan amendment that added a "stock bonus plan" feature to a publicly traded client's 401(k) plan.

In her practice counseling major publicly and non-publicly traded companies regarding their non-qualified arrangements, Ms. Bakker's practice focuses on the design, implementation, and operational issues spawned by IRC § 409A.  Ms. Bakker has drafted director and executive non-qualified deferred compensation plans, including stock option plans, stock appreciation rights plans, phantom stock plans, unit appreciation plans, long term incentive plans (performance based and non-performance based), excess benefit plans, top-hat plans not linked to a qualified plan, and individual executive employment agreements and severance plans.  A representative sample of non-qualified plan projects include:

• Assisted a major publicly traded pharmaceutical company with the design of its executive severance plans to avoid the golden parachute rules;
• Designed a performance based incentive plan to comply with IRC § 162(m) for another large publicly traded corporation;
• Assisted another large publicly traded corporation with the application of its change in control agreements following a stock acquisition;
• Prepared a new plan document that merged two non-qualified deferred compensation plans (one for the client's executives and the other for outside directors) to form a single plan, and added provisions to comply with the American Jobs Creation Act.

Ms. Bakker's practice also includes counseling clients in corporate dissolutions, mergers, and reorganizations that involve plan mergers, transfer of plan assets, and multi-employer plan contributions and withdrawal liability.

ERISA Litigator. Drawing on her substantive experience and knowledge of ERISA and the Internal Revenue Code from her work as an ERISA counselor, Ms. Bakker represents employers and providers in ERISA litigation matters around the country.  A representative sample of the ERISA litigation matters that Ms. Bakker has handled follow.

Vaughan v. Celanese Americas Corporation Separation Pay Plan, (4^th Cir. 2009).  Following the sale of their division in a divestiture transaction, twenty former employees of Celanese sued for severance pay because the buyer of their division did not offer the same level or quality of employee benefits that Celanese provides its employees, but did offer jobs at comparable compensation.  Fueling the plaintiffs' claims was their knowledge that Celanese had funded payments to other similarly situated divested employees when Celanese sold their division.  Following a pre-Glenn v. MetLife bench trial that examined Celanese's structural conflict of interest as both the funder and administrator of the severance plan, the District Court found that Celanese's benefits manager had not been unduly influenced by Celanese management in denying severance benefits.  Having made that factual determination a trial, the District Court then granted Celanese summary judgment and recognized that a company's business decision to appease divested employees in order to close a deal does not establish binding precedent on a plan fiduciary to grant severance benefits under the terms of a benefit plan - even to similarly situated divested employees.  In one of its first post-Glenn v. MetLife decisions, the Fourth Circuit affirmed establishing new law in the Fourth Circuit that a company's business decisions are not "plan administration" governed by ERISA. 

Bosted v. Celanese Americas Corporation Retirement Medical Plan (11^th Cir. 2008).  In this ERISA claim for benefits, the plaintiff sought reinstated retiree medical coverage on the theory that the settlement of her disputed claim for long term disability benefits made her eligible for reinstated retiree medical benefits.  To be eligible for retiree medical benefits under Celanese's retiree medical plan, a former employee must be "receiving" long term disability benefits under Celanese's long term disability plan.  When the third party LTD carrier terminated the plaintiff's LTD benefits, Celanese terminated her retiree medical coverage.  After waging a four year battle with the LTD carrier regarding her continued eligibility for LTD benefits, the plaintiff finally settled that dispute and then immediately asserted that her receipt of the settlement proceeds satisfied the retiree medical plan's eligibility criteria. 

While this case raised complex ERISA claims accrual issues of first impression in the Eleventh Circuit because of the temporal disconnect between when Celanese first terminated the plaintiff's retiree medical coverage (2001) and when she first asserted her claim for reinstated retiree medical coverage (2005), the Eleventh Circuit ultimately affirmed the District Court's grant of summary judgment in favor of Celanese and rejected the plaintiff's theory that settlement proceeds somehow equals benefits. 

Becker v. Mack Trucks, Inc., 281 F.2d 372 (3d Cir. 2002).  In this ERISA pension discrimination class action, the Third Circuit affirmed the District Court's ruling in favor or Mack Trucks.  Former employees of Mack Trucks claimed that the company wrongfully refused to rehire them because the employees had previously earned pension credit under Mack Truck's pension plan.  Had the company rehired the former employees, its unfunded pension liability would have exponentially increased when the previously earned pension credit would be combined with the additional pension credit earned upon rehire.  The plaintiffs alleged that Mack's refusal to rehire them was pension discrimination that violated ERISA Section 510. 

The Third Circuit held that the plaintiffs who were not yet vested under Mack Truck's pension plan did not have standing to assert an ERISA Section 510 claim because they were not "participants" under ERISA.  While those plaintiffs who had a vested pension benefit in Mack Truck's pension plan did have standing, the Third Circuit held that ERISA Section 510 does not prevent employers from taking pension costs into consideration in hiring decisions because job applicants (even former employees) do not have protected rights to receive pension benefits based on future employment.  Rather, the protection offered by ERISA Section 510 to receive future benefits is only triggered when an employee is actually hired. 

Markowitz v. Celanese Americas Corporation Retiree Medical Plan, (D. NJ 2006).  Like many employers faced with escalating retiree medical costs, Celanese made sweeping, across the board changes to its retiree medical plan in 2003 to reduce benefits for its 11,000 retirees and save the company millions in health care costs.  In this case, a former executive sought to rescind Celanese's reduction in retiree medical benefits for its retirees.  Protecting an employer's right to reduce or terminate retiree medical benefits, even in the face of former employees' expectation to receive retiree medical benefits for life, the District Court granted summary judgment to Celanese on Markowitz's ERISA claim for retiree medical benefits and ERISA breach of fiduciary duty claim.

Brown v. Godwin Pumps, Inc. (D.N.J. 2004).  In this severance case that had potentially devastating implications for Godwin Pumps, a high level executive sued Godwin Pumps for severance benefits under a twenty year old "voluntary employees beneficiary association" or "VEBA" that failed to satisfy virtually all of ERISA's and the Internal Revenue Code's requirements.  Even though Godwin Pumps had failed to distribute a summary plan description for the VEBA and had otherwise issued misleading communications to its employees, the District Court granted summary judgment to Godwin Pumps on all of the plaintiff's claims because the terms of the VEBA plan document did not provide for the severance benefit that the plaintiff sought. 

Herman v. Radnor Capital Management, (W.D. Pa 2001).  Asserting co-fiduciary liability for various ERISA breach of fiduciary duty and prohibited transaction claims, the United States Department of Labor sued an investment management company for plan losses resulting from the plan trustees' transfer of assets from a profit sharing plan to a leveraged ESOP.  In a significant decision that narrowed "fiduciary" status under ERISA's functional definition, the District Court granted summary judgment to Radnor Capital Management and held that the company had no co-fiduciary liability for the plan trustees' decision to merge the profit sharing plan into the ESOP and use of the profit sharing plan's assets to purchase company stock. 

Dorney v. Hoechst Marion Roussel, Inc., (D. NV 1999).  Following the merger of Hoechst Pharmaceuticals into Hoechst Marion to form Hoechst Marion Roussel, the parent company announced that it would transfer accrued benefits from its defined benefit plan to HMR's cash balance plan, but subsequently reversed that decision with respect to certain of its older employees in order to protect their interest in the defined benefit plan.  During the interim, the plaintiff who had been told that his pension benefit would transfer to the cash balance plan, gave notice of his intent to retire so that he could obtain a lump sum distribution from the cash balance plan.  When the company reversed its decision as to the older employees (including the plaintiff), the plaintiff sued seeking to prevent the company from grandfathering his pension benefit in the defined benefit plan.  Recognizing a plan sponsor's right under ERISA to amend a plan (even to reverse a prior amendment), the District Court granted summary judgment, noting that the plaintiff had not actually been injured since he received notice of the company's position before he actually retired.

Representative clients include Binswanger Corporation, Celanese Corporation, ArvinMeritor, Inc., Mack Trucks, Inc., ACE USA, Chemalloy Company, Inc., and ESSCHEM, Inc.

Professional Associations/ Activities:

Most recently, Ms. Bakker was a course planner and speaker at the American Conference Institute's Premier Forum on Defending and Managing ERISA Litigation in New York City in October, 2009.  Ms. Bakker will also serve as a course planner and speaker at the American Conference Institute's National Advanced Compliance Forum  on Minimizing Legal Risks in the Design, Implementation & Administration of Employee Benefits Plans to be held in New York City in May, 2010. 

Admitted to Practice:

Ms. Bakker is admitted to practice in Pennsylvania, Texas and District of Columbia.

Education:

Ms. Bakker graduated from Louisiana State University, summa cum laude, where she was a member of Phi Kappa Phi.  Ms. Bakker received her J.D. from the University of Texas School of Law in 1990.