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Nick Pastan

Nick Pastan is a trial-tested class action and commercial litigator who represents clients in high stakes disputes involving ERISA, False Claims Act allegations, and government-facing litigation. He serves as counsel at all stages of litigation—from pre complaint investigation through trial and appeal—in federal and state courts nationwide.

Nick has substantial experience defending companies in complex class actions, particularly under ERISA, including fiduciary breach, prohibited transaction, and plan administration claims. His work often involves technically complex issues of benefit plan design and statutory interpretation. He has secured dismissals and defense verdicts for plan sponsors, fiduciaries, and corporate defendants, and advises on litigation strategy in matters involving parallel regulatory or enforcement exposure.

In addition to his ERISA practice, Nick regularly defends clients in False Claims Act litigation and other disputes involving federal or state government entities. He has represented clients across a range of industries, including healthcare, pharmaceuticals, defense contracting, financial services, consumer products, and financial services, and is experienced in managing matters involving overlapping civil litigation, investigations, and enforcement risk. He is particularly skilled at distilling complex factual records and regulatory frameworks into clear, persuasive advocacy.

Nick has tried cases to verdict, argued dispositive motions, and handled all phases of discovery in complex, expert-driven matters, including multidistrict litigation. Clients value his strategic judgment, courtroom experience, and ability to manage technically demanding cases efficiently while maintaining a sharp focus on business objectives. He also maintains an active and trial-focused pro bono practice, serving as lead counsel in civil rights and False Claims Act matters, and represents individuals in housing, excessive force, and immigration cases.

Earlier in his career, Nick worked in education, which informs his disciplined communication style and collaborative approach to litigation.

 

Watch: Discover how our distinctive approach to ERISA class actions delivers smarter, more strategic results. In this video, we discuss how early, rigorous case assessment can uncover opportunities to dismiss or narrow claims and how we evaluate case value to shape efficient resolution strategies, while remaining fully prepared to litigate and win at trial.

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On April 17, 2025, the Supreme Court issued its opinion in Cunningham v. Cornell University, No. 23-1007, 604 U.S. ___ (2025), a case addressing the pleading standard for prohibited-transaction claims under § 406(a) of the Employee Retirement Income Security Act of 1974 (ERISA).  Section 406(a) proscribes certain transactions between plans and “parties in interest” absent a statutory exemption enumerated under ERISA § 408.  The core question on appeal was whether plaintiffs must allege, as an element of a prohibited-transaction claim under § 406(a), that an exemption under § 408 does not render the challenged transaction lawful.

In a decision that is expected to have wide-ranging implications, the Court held that exemptions under § 408 provide affirmative defenses to liability under § 406(a).  Consequently, plaintiffs need not allege that any of the exemptions set forth in § 408 are unavailable to state a plausible claim for relief.  Rather, the burden falls on plan fiduciary defendants to plead and prove that an exemption under § 408 nullifies a plaintiff’s claim.

The Court recognized that its decision in Cunningham could make it more difficult for defendants to secure the dismissal of prohibited-transaction claims by invoking a statutory exemption.  If so, plan sponsors (and other fiduciaries) could be forced to engage in costly discovery defending transactions that ERISA expressly permits, effectively penalizing them for providing valuable and necessary services to participants.

Provided below is a more detailed discussion of Cunningham, divided into three parts.  The first part briefly discusses the legal framework governing prohibited-transaction claims.  The second part summarizes the Court’s analysis.  The third part concludes with an overview of potential mitigation strategies.

Continue Reading A Closer Look:  Supreme Court Rejects Heightened Pleading Standard for Prohibited-Transaction Claims under ERISA § 406(a)

In January, we posted about the Department of Labor’s (DOL or the “Department”) proposed rule to allow more Association Health Plans (AHPs) to be regulated as large group health plans.  The proposed rule garnered national attention and the Department received over 900 stakeholder comments from consumer groups, individual employers, employer associations, health insurance issuers, business groups, and state regulators.  Supporters of the rule emphasized the need for more affordable health care options while detractors raised concerns about the rule’s potential effects on the existing health care markets and the scope of coverage that will be available to individuals who enroll in AHPs.

On June 19, 2018, the Department finalized the rule, 83 Fed. Reg. 28912 (June 19, 2018) (codified at 29 C.F.R. 2510), with relatively few changes to the proposed rule.Continue Reading DOL Finalizes Highly Anticipated Rule Aimed at Expanding Access to Association Health Plans

On February 20, 2018, the Supreme Court decided CNH Industrial N.V. v. Reese, 574 U.S. ___ (2018), which raised, for the second time in three years, the question of how courts should interpret collective-bargaining agreements (“CBAs”).  Reese involved a dispute between retirees and their former employer, CNH, about whether an expired 1998 CBA created a vested right to lifetime health benefits.  In a per curiam opinion, the Court found that a straightforward reading of the CBA compelled the conclusion that retiree health benefits expired when the CBA expired in 2004.  The Court’s opinion emphasized the significance of CBA expiration dates for retiree health benefits and forcefully reiterated its decision in M&G Polymers USA, LLC v. Tackett, 574 U.S. ___ (2015), that collective-bargaining agreements must be interpreted according to “ordinary principles of contract law.”
Continue Reading Supreme Court Deals Another Blow to Sixth Circuit’s “Yard-Man Inferences”

On January 5, 2018, the Department of Labor (DOL or the “Department”) published a proposed rule to allow more Association Health Plans (AHPs) to be regulated as large group health plans. 83 Fed. Reg. 614 (Jan. 5, 2018) (to be codified at 29 C.F.R. pt. 2510). The proposed regulation was developed in response to President Trump’s October 12, 2017 Executive Order 13813, directing the executive branch to facilitate the purchase of insurance across state lines and, specifically, directing the DOL to “consider proposing regulations or revising guidance . . . to expand access to health coverage by allowing more employers to form AHPs.” The proposed regulation fulfills this charge by relaxing the Department’s existing interpretation of the conditions under which an association is considered the employer sponsor of a single multiple employer welfare arrangement under the Employee Retirement Income Security Act (ERISA). 83 Fed. Reg. at 626. An AHP that is a single multiple employer arrangement more easily qualifies as a plan offered in the large group market because it may aggregate employees of all employer members to determine the plan’s market. In some cases under the proposed rules, an AHP may be offered to employers in more than one State, even if the AHP is insured.
Continue Reading DOL Proposes to Relax Regulations Governing Association Health Plans