Mark E. Schmidtke

*Currently licensed in Indiana only.

Mark E. Schmidtke is a shareholder in the firm’s Valparaiso, Indiana office, a satellite of the Chicago and Indianapolis offices and Chair of the firm’s ERISA Litigation Practice Group which was named as Best Lawyers in America 2020 National Law Firm of the Year for ERISA Litigation. He has represented clients in ERISA and non-ERISA employee benefits matters in state and federal courts throughout the United States for nearly 40 years. He has been lead or co-lead counsel in ERISA litigation matters pending in the courts of every state in the U.S. He has argued appeals in the United States Courts of Appeals for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits, as well as the Massachusetts Supreme Judicial Court, the Minnesota Supreme Court, the Minnesota Court of Appeals, the Indiana Court of Appeals, and the California Court of Appeals. He has also authored several briefs and petitions at the United States Supreme Court, including amicus curiae briefs in important ERISA cases such as Hardt v. Reliance Standard, Black & Decker v. Nord and Yates v. Hendon.

Mark serves as National ERISA Counsel for several financial services companies, consulting with house counsel and outside counsel on litigation matters and advising house counsel and business clients on document drafting and policy issues. He has also represented national and international companies in large class actions involving significant employee benefit issues. He has written numerous books and articles on employee benefit-related issues and is a frequent speaker at national seminars.

More About Mark E. Schmidtke

Experience

Mark was lead counsel in defending an international manufacturing company’s 401(k) plan and its fiduciaries from class action allegations of excessive fees and improper investment options.
Mark represented a major financial services company in proposed class actions in Kansas and Massachusetts alleging improper offsets in its long-term disability insurance products, obtaining favorable judgments affirmed by the United States Courts of Appeals for the Tenth Circuit and the First Circuit.
Mark was co-lead counsel for a major health insurance carrier in a proposed class action pending in federal court in Chicago involving disputes over alleged recoupments of overpayments brought by several chiropractors and chiropractic associations.
Mark was retained by an international organization of defense lawyers to prepare and file an amicus curiae brief in the United States Supreme Court on behalf of the respondent in Hardt v. Reliance Standard Life Insurance Company. The issue in that case involved the application of ERISA’s attorney’s fee-shifting provision and whether the provision required a recovering party to prevail in the underlying litigation before recovering its fees and costs.
Mark was retained by a national life insurance trade organization to prepare and file an amicus curiae brief in the United States Supreme Court in support of the petitioner in Standard Insurance Company v. Morrison. The case involved a challenge to a state insurance commissioner regulation prohibiting discretionary clauses in insurance policies that fund benefits under ERISA welfare plans.
Mark was retained as consulting counsel by a large disability insurance carrier in a matter pending in federal court in California for the purpose of briefing and arguing a key issue of ERISA preemption related to whether the disability insurance policies at issue in the case were governed by ERISA and, if so, whether California’s law of insurance bad faith was preempted. The issue had a large impact on the potential value of the dispute.
Mark was retained by a large international disability insurance carrier to prepare and file an amicus curiae brief in the United States Supreme Court in support of the petitioner in Black & Decker v. Nord. The central issue in the case was whether the treating physician rule applicable in Social Security disability cases could be imported in to ERISA-governed private disability disputes.
Mark was retained by a large international disability insurance carrier to prepare and file an amicus curiae brief in the United States Supreme Court in support of the respondent in Yates v. Hendon. The central issue in that case was whether claims for benefits by owners of companies that sponsor ERISA-governed plans are also governed by ERISA and whether state law claims are preempted by ERISA.
Mark was lead counsel for an international manufacturing company in a case pending in federal court in Minnesota that was sued by 35 former employees who alleged that when their facility was shut down, certain misrepresentations were made in connection with the company’s pension plans.
Mark was lead counsel for an national disability insurance carrier in a matter pending in a federal court in Alabama and, ultimately, in the United States Court of Appeals for the Eleventh Circuit, involving the question of whether state law bad faith claims by a shareholder in an incorporated medical practice who participated in the company’s ERISA-governed disability program were preempted by ERISA.
Mark was lead counsel for an international manufacturing company in a matter pending in a federal court in Indiana where the issue was whether a claimant satisfied the definition of a surviving spouse in the company’s pension plan.
Mark was co-lead counsel for a major health insurance carrier in a class action involving claims of fiduciary breaches under ERISA. Specifically, the question was whether the carrier shared certain medical provider discounts with self-funded employer sponsored health plans.

Education & Admission

Professional Activities

Speeches

Employee Benefits Symposium – “ERISA Litigation Update: What Employers Need to Know in 2021” – March 5, 2021
Ogletree Deakins Employee Benefits and Executive Compensation Symposium – “Lessons From ERISA Litigators: How to Protect Your Plans From Liability ” – Las Vegas – May 1, 2019
Ogletree Deakins Workplace Strategies Seminar – “Arbitration and Other Ways to Protect Your 401(k) Plan From Fee Litigation” – Phoenix – May 10, 2018
Employee Benefits and Executive Compensation Symposium – “Arbitration Agreements and Other Ways to Insulate Your 401(k) Plan From Fee Litigation” – Phoenix – May 9, 2018
American Health Lawyers Association Annual Meeting – “ERISA Remedies: A New Age of Expanded Liability” – New York – June 2014
DRI Life, Health, Disability and ERISA Conference – “Advanced ERISA” – Chicago – May 2014
Blue Cross Blue Shield 47th Annual Lawyers Conference – “ERISA: A New Age of Expanded Liability” – Phoenix – October 2013
Definitive Disability Conference – “ERISA Civil Remedies: Amara and Beyond” – Boston – May 2013
DRI Life, Health, Disability and ERISA Conference – “Advanced ERISA” – Boston – April 2013
American Conference Institute Annual Conference on Litigating Disability Claims – “ERISA Remedies” – New York – January 2013
DRI Life, Health, Disability and ERISA Conference – “Advanced ERISA” – Chicago – April 2012
DRI Life, Health & Disability Insurance Primer For New ERISA And Non-ERISA Practitioners – “Primer On ERISA Litigation” – Chicago – November 2011
DRI Webcast Series – “ERISA Or Not? – What Difference Does It Make?” – October 2011
Life, Health, Disability and ERISA Claims Seminar – “Advanced ERISA” – Boston – April 2011
American Health Lawyers Association Webinar – “Fundamentals of ERISA Preemption” – January 2011
ABA Teleconference Series – “Supreme Court Update on ERISA Issues” – July 2010
WEB Chicago – West Suburban Chapter Meeting – “Mid-Year Legal Review” – Lisle – June 2010
Western Claim Conference – “ERISA Disability Law” – Indian Wells – June 2010
Ogletree Deakins Workplace Strategies Seminar – “ERISA Litigation Update: Impact of Healthcare Legislation and the Supreme Court” – Las Vegas – May 6 – 7, 2010
Life, Health, Disability and ERISA Claims Seminar – “Advanced ERISA Update and Litigation – Strategies that Work” – Chicago – April 2010
Life, Health, Disability and ERISA Claims Seminar – “Unique Strategies for Recurring Issues in the ERISA Claim Process” – Chicago – April 2010