Mark E. Schmidtke
* Currently licensed only in Indiana.
Mark E. Schmidtke represents clients in ERISA and Non-ERISA employee benefits matters in state and federal courts throughout the United States for nearly 30 years. He has been lead or co-lead counsel in ERISA litigation matters pending in the courts of 49 states. He has argued appeals in the United States Courts of Appeals for the 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.
Mr. Schmidtke serves as National ERISA Counsel for several large life, health and disability insurers, consulting with house counsel and outside counsel on litigation matters and advising house counsel and business clients on document drafting and policy issues. Mr. Schmidtke has also represented national and international companies in large class actions. He has written numerous books and articles on employee benefit-related issues and is a frequent speaker at national seminars.
- Mr. Schmidtke 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.
- Mr. Schmidtke was lead counsel for an international disability insurance carrier in an action pending in federal court in Chicago involving a dispute over offsets of large disability payments based on the insured's recovery of several million dollars in a medical malpractice settlement. The case involved interpretation of a key clause used in many disability insurance policies and may have a broad impact on how such clauses are applied in the future.
- Mr. Schmidtke 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.
- Mr. Schmidtke 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.
- Mr. Schmidtke 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.
- Mr. Schmidtke 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.
- Mr. Schmidtke 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.
- Mr. Schmidtke was lead counsel for an international manufacturing company in a case pending in federal court in Minnesota who 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.
- Mr. Schmidtke 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.
- Mr. Schmidtke 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.
- Mr. Schmidtke 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 and Honors
J.D., Valparaiso University School of Law, 1981
B.A., with high distinction, Valparaiso University, 1978
- Martindale-Hubbell AV Rating
- Indiana Super Lawyer
- Fellow, American College of Employee Benefits Counsel
- Law Clerk to the Hon. James T. Moody, USDJ-N.D. Ind. (1982-83)
- Law Clerk to the Hon. George B. Hoffman, Jr., Indiana Court of Appeals (1981)
- DRI The Voice of the Defense Bar (National Director, 2010-present; Former Chair of the DRI Life, Health and Disability Committee, 2004-06; Member, DRI Life, Health and Disability Committee)
- American Bar Association (Tort and Insurance Section - Employee Benefits Committee; Labor and Employment Section - Employee Benefits Committee)
- Indiana State Bar Association
- Indiana Defense Trial Lawyers
- Concordia Plan Services (Vice Chair and Member, Board of Directors; Lutheran Church Missouri Synod, 2006-present)
- Valparaiso Community Schools, Valparaiso, Indiana (President and Member, Board of Trustees, 1998-2008)
- Fellow, American College of Employee Benefits Counsel
- 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
- Western Claim Conference - "ERISA Disability Law" - Indian Wells - June 2010
- WEB Chicago – West Suburban Chapter Meeting - "Mid-Year Legal Review" - Lisle - June 2010
- Ogletree Deakins Workplace Strategies Seminar - "ERISA Litigation Update: Impact of Healthcare Legislation and the Supreme Court" - Las Vegas - May 6, 2010 - May 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
- National ERISA Litigation Institute - "Long Term Disability Claims" - Chicago - November 2009
- National Educational Conference and Expo - "Hot Topics and Issues in the Self-Funded Industry" - Orlando - September 2009
- Annual Disability Insurance Seminar - "Mediation Issues" - Boston - June 2009
- Life, Health, Disability & ERISA Claims Seminar - "Advanced ERISA Issues" - New York - April 2009
- Life, Health, Disability & ERISA Claims Seminar - "ERISA Basics" - New York - April 2009
In The News
- June 25, 2014 - - "Lawyers Weigh In On High Court's ERISA Ruling"
- April 1, 2014 - - "Justices To Weigh Key Defense For ERISA Stock-Drop Cases"
- January 21, 2014 - - "High Court Rules on Contractual Limitations Period"
- April 24, 2013 - - "Class Action Lawyers Frustrated By High Court's ERISA Focus"
- July 3, 2012 - - "What The Health Care Ruling Means For Talent Management"
- October 20, 2011 - - "Stock Drop Claim Seeking More than One-Third of a Billion Dismissed"
- May 23, 2011 - - "Supreme Court Decision Curbs Pension Plan: Liability Claimants Must Show Active Harm"
- June 30, 2014 - Ogletree Deakins Blog Post - "What Happens When The Limitations Provision in the Plan As Applied Creates An Impossible Accrual Date?"
- December 9, 2013 - Ogletree Deakins Blog Post - "Rochow v. LINA: Can it Really be True that ERISA Benefit Claimants Can Recover Millions of Dollars in Disgorged Profits?"
- November 12, 2013 - BNA Pension & Benefits Daily - "Accrual of Limitations Periods for ERISA Benefit Claims: Why the Circuit Split Should Be Resolved in Favor of Insurers and State Insurance Laws"
- Fall 2013 - ABA Section of Labor and Employment Law - Employee Benefits Committee Newsletter - "Circuit Round Up"
- July 20, 2012 - SHRM.org - "Assertion that Misconduct Allegations Were Recanted Sends ERISA Retaliation Claim to Trial"
- June 8, 2012 - Ogletree Deakins Publication - "The Defense of Marriage Act and Employee Benefits – Is the Tide Turning?"
- July 2011 - DRI’s For the Defense - "Deferential Review In The Context Of ERISA: The Firestone, Glenn and Conkright Trilogy"
- December 2010 - DRI Life, Health & Disability News - "Hardt Decision: Attorney’s Fees and the Future of the Five-Factor Test"
- Summer 2009 - DRI ERISA Report - "Accrual of Limitations Periods for ERISA Benefit Claims: Circuit Split Needs to be Resolved"
- September/October 2008 - DRI Life, Health & Disability News - "What Did the Supreme Court Decide in Met Life v. Glenn?"
- January 2007 - Defense Research Institute's For the Defense - "A Primer on Self-Funding Long Term Disability Plans"
- July 2006 - Defense Research Institute's DRI ERISA Report - "Sereboff Upholds Plan's Right to Reimbursement of Benefit Overpayments from Identifiable Fund"
- March 2006 - Defense Research Institute's For the Defense - "ERISA Judicial Review Standards and Conflicts of Interest"
- 2005 - Indiana State Bar Association - "The Employment and Labor Law Handbook for Indiana Lawyers"
- 2005/2011 - American Bar Association - "ERISA Survey of Federal Circuits"