The Wagner Law Group, Est. 1996

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Attorney Stephen Rosenberg Headshot

Stephen D. Rosenberg

Partner

Location:
Boston

Practice Areas

Biography

Stephen has chaired the ERISA and insurance coverage/bad faith litigation practices at two Boston firms, and has practiced extensively in commercial litigation for nearly 30 years. As head of the Wagner Law Group's ERISA litigation practice, he represents plan sponsors, plan fiduciaries, financial advisors, plan participants, company executives, third-party administrators, employers and others in a broad range of ERISA disputes, including breach of fiduciary duty, denial of benefit, Employee Stock Ownership Plan and deferred compensation matters.

Stephen has extensive experience in class action litigation and commercial arbitration, with substantial first chair trial experience in both state and federal courts. One federal district court judge described his work as class action lead counsel as "a very good job in all aspects." Stephen was named one of the best 15 ERISA lawyers in the country in 2015 by the National Association of Plan Advisors, and is the sole author of an award-winning blog on ERISA and insurance litigation.

Stephen is also an experienced commercial and insurance litigator, with decades of experience representing clients in complex insurance coverage, insurance bad faith, director and officer liability, professional liability, patent infringement and copyright infringement disputes. He has tried patent infringement, product liability, director and officer liability, consumer protection, insurance bad faith, reinsurance and commercial insurance coverage cases to verdict in state courts, federal courts and commercial arbitrations.

Stephen frequently represents insurers and corporate policyholders in commercial liability, reinsurance, chapter 93A, and bad faith disputes, having litigated and arbitrated complex coverage disputes throughout the country and internationally. Stephen has tried multiple bad faith cases seeking millions of dollars in damages from insurers for alleged violations of Massachusetts' unfair claim settlement practices act.

In addition, Stephen counsels clients on ERISA compliance and plan operation issues. He assists clients in correcting problems with ERISA plans and in drafting plan documents, counsels legal departments on the operations of ERISA governed plans, and serves as counsel to retirement plan committees. He regularly advises senior management, including senior executives and general counsel, on ERISA compliance and litigation. He is also often retained by start up and emerging technology and software companies to provide counsel on patent, copyright and software issues, including claims of infringement and contractual disputes with customers.

Stephen has been quoted extensively in the media concerning ERISA litigation, including by the Wall Street Journal, Massachusetts Lawyers Weekly, National Law Journal and Bloomberg BNA. He has published extensively on ERISA litigation issues, including articles on excessive fee disputes, and has lectured regularly on both ERISA and insurance issues at leading industry conferences.

Publications & Media

ARTICLES PUBLISHED

  • Supreme Court Broadly Interprets the Scope of ERISA’s Church Plan Exemption – ASSPA / Plan Consultant, Fall 2017
  • Courts Redefine ERISA’s Church Plan Exemption – ASSPA / Plan Consultant, Fall 2014
  • Real Knowledge, Fake Knowledge, and the Duty to Inquire: Time Limitations in ERISA Litigation,” Journal of Pension Benefits, Vol. 21, No. 4, Summer 2014
  • Opening Up the Courthouse Door: The Second Circuit Weighs In on Exhaustion of Administrative Remedies,” Journal of Pension Benefits, Vol.20, No. 4, Summer 2013 (analyzing legal trends concerning the requirement that participants exhaust administrative remedies available under a plan).
  • Looking Closely at Operational Competence: ERISA Litigation Moves Away from Doctrine and Towards a Careful Review of Plan Performance,” Journal of Pension Benefits, Vol. 20, No. 2, Winter 2013 (examining the judicial expansion of ERISA remedies).
  • An ERISA Litigator Looks at the New Department of Labor Definition of Fiduciary,” Journal of Pension Benefits, Vol. 19, No.4, Summer 2012 (examining the regulatory expansion of fiduciary status under ERISA, which would impact ESOPs and their appraisers, among others).
  • Structural Impediments to Breach of Fiduciary Duty Claims,” Journal of Pension Benefits, Vol. 19, No.2, Winter 2012 (analyzing doctrinal and procedural barriers to the successful prosecution of breach of fiduciary duty claims under ERISA).
  • Retreat from the High Water Mark: Breach of Fiduciary Duty Claims Involving Excessive Fees after Tibble v. Edison International,” Journal of Pension Benefits, Vol. 18, No. 3, Spring 2011 (analyzing issues involved in breach of fiduciary duty actions, including class actions, involving investment options in defined contribution plans).
  • Patent Litigation Doesn’t Have to be Prohibitively Expensive,” New England In-House Magazine, November 30, 2007 (discussing the use of cost benefit analysis to control costs in patent litigation while still aggressively prosecuting the suit).
  • The Expanding Scope of Advertising Injury Coverage,” Declarations, Summer 1992 (analyzing the expansion of the advertising injury grant of coverage to capture additional risks that were not accounted for as part of underwriting).
  • Sole Author, Boston ERISA and Insurance Litigation Blog (twice named a Top Law Blog by Lexis/Nexis).

JOURNALS AND PERIODICAL QUOTING MR. ROSENBERG

SEMINARS, WEBINARS AND PRESENTED PAPERS

  • Liability Insurance for ERISA Plan Sponsors: Minimizing Financial Risks During the Pandemic and Economic Downturn – Co-presneter Strafford Webinar, December 2, 2020 – More details here
  • COVID-19 and Director and Officer Liability: Defense, Insurance Coverage and the Role of the Broker -Panelist with Machua Millett (Marsh USA), The Wagner Law Group free webinar, May 12, 2020, 1:00 PM (ET) – Click here to register
  • THE CENTRE BARELY HOLDS: ERISA PREEMPTION AFTER GOBEILLE V. LIBERTY MUTUAL INSURANCE COMPANY, Bloomberg BNA Compensation Planning Tax Advisory Board, New York, NY, May 19, 2016
  • Faculty, “Liability Insurance for ERISA Plan Sponsors: Maximizing Coverage Under Employee Benefits and Fiduciary Liability Policies – Securing Coverage for Civil Damages and Tax Assessments Arising From the ACA and Other Claims,” June 4, 2015 Strafford Webinar.
  • Panelist, “Benefit Claim Litigation,” 9th National Forum on ERISA Litigation, sponsored by the American Conference Institute, April 13-14, 2015.
  • Presenter, “Fiduciary Exception to the Attorney-Client Privilege,” 9th National Forum on ERISA Litigation, sponsored by the American Conference Institute, April 13-14, 2015.
  • Speaker, “Ethical Issues in ERISA Litigation,” 8th National Forum on ERISA Litigation, sponsored by the American Conference Institute, October 27-28, 2014.
  • Sole Presenter, “ERISA Litigation Update,” ASPPA Boston Regional Conference, July 2014.
  • Faculty, “Executive Compensation Law,” MCLE, June 2012. Presented “Litigating Top-Hat Plans and Similar Disputes.”
  • Speaker, “The Year of Disclosure: New Retirement Plan Regulations and Legislation Impacting 401(k) and 403(b) Plans,” New England Employee Benefits Council, March 2012.
  • Presenter, “Cyber Risks and Coverage: Questions to Consider,” National Presentation for AIG, New York City and national intra-company broadcast, March 2012.
  • Sole Presenter, “Fiduciary Exposure and Liability,” BrightScope Client Webinar, September 2010.
  • Speaker, “Insurance: What is Your Company Getting and What Should it be Asking For?” New England Corporate Counsel Association, May 2009.
  • Panelist, “Pension Fiduciaries in the Hot Seat: What to Avoid & How to React if Sued,” sponsored by Pension Governance Inc., April 2009.
  • Sole Presenter, “ERISA Litigation: An Update from the Front Lines,” ASPPA Benefits Council of New England, January 2009.

Education

  • Boston University School of Law, Boston, Massachusetts
    • J.D. - 1990
    • Honors: G. Joseph Tauro Distinguished Scholar; Paul Liacos Scholar
    • Honors: American Jurisprudence Award, Criminal Law
  • American University, Washington, District of Columbia
    • B.S. - 1986

Bar Admissions

  • Massachusetts, 1991
  • U.S. District Court District of Massachusetts

Representative Cases

  • Doe v. Liberty Mutual, 423 Mass. 366, 1996, 1996172973
  • Cohen v. Liberty Mutual Insurance, 41 Mass. App. Ct. 748, 1996, Mass. App. Ct., 1996268002
  • Loftis v. Liberty Mutual Insurance, 1995 WL 491340, Mass Super, 1995169690
  • Lexington Ins. Co. v. Dreyfuss Bros., Inc, 1993 WL 102629, 1993, D.D.C., 1993082752
  • Trustees of Cantabury Heights Manor Condominium v. Public Service Mutual Ins. Co., 5 Mass. L. Rptr. 341, 1996, 1996144090

Honors

  • Quoted in "Pension Fund Litigation Could Slow Investments," New York
  • Interviewed in "Firm blog vs. personal blog: How to choose," Wisconsin Law Journal
  • Featured in "Blogged Down," Boston Business Journal
  • Quoted extensively on fiduciary duties under ERISA in "Deere & Co. Successfully Defends 401(k) Fee Suit," InsideCounsel Magazine
  • "Exclusive Interview: Boston ERISA Legal Author Stephen Rosenberg Explains DOL's New Fiduciary Definition," Fiduciary News
  • Quoted extensively on the subject of patenting ERISA and tax related strategies in "A Warning to ERISA Practitioners: Your Benefit Plan Strategies May Be Patented", 34 Pens. & Benefits Rep. (BNA) 1329
  • Featured in front page article on ERISA standing issues, "Retirees Granted ERISA Standing to Sue Fiduciaries," Massachusetts Lawyers Weekly
  • Quoted or featured in articles on litigation and ERISA issues in several national publications, including InsideCounsel magazine, Business Insurance, the National Law Journal, Massachusetts Lawyers Weekly, LawyersUSA, the BNA Pension and Benefits Reporter, and Fiduciary News
  • Retained Asset Accounts Under ERISA Allowed - Massachusetts Lawyers Weekly
  • 10 Insider Blogs Every 401k Plan Sponsor & Fiduciary Must Read (Part I) - Fiduciary News

Past Positions

  • The McCormack Firm, Partner - Chair of Firm's ERISA practice, 1991 to 2014