Patrick C. DiCarlo - Alston & Bird LLP

Patrick C. DiCarlo

Listed in Best Lawyers since 2017

DiCarlo has more than 22 years of experience counseling ERISA plan sponsors and fiduciaries on regulatory compliance issues and litigating disputes. He has counseled and represented some of America’s largest employers regarding fiduciary and prohibited transaction concerns, service provider fees, investments in employer securities, the prudence of particular investments and investment policies, executive compensation disputes, disclosure issues and challenges to benefit claim review procedures and decisions. His practice has focused on counseling plans and financial services providers regarding fiduciary issues, prohibited transactions, fee disclosure (including drafting participant disclosures and investment policy statements), designing benefit claim procedures and litigating benefit disputes of all types. He also advises plan fiduciaries and service providers on the structuring of financial products and related fiduciary and prohibited transaction concerns.

In the last 10 years alone, DiCarlo has argued seven cases in the federal Courts of Appeals, including cases in the First, Fourth, Sixth, Eighth and Eleventh Circuits, and has briefed many more.

DiCarlo is a member of the Reporting and Disclosure subcommittee of the ABA’s Employee Benefits Committee. He is also co-authors of the COBRA litigation chapter in the Bloomberg BNA ERISA Litigation book. He has written extensively this year on the Department of Labor’s proposed fiduciary regulation.

Abraham Baldwin Agricultural CollegeAB 1991University of GeorgiaJ.D. 1994
ABA Employee Benefits Committee, Reporting and Disclosure Subcommittee

Case History

Emory University 403(b) Plan — We represent Emory University, the Emory University Board of Directors, the Emory University 403(b) Plan, and the Emory University 403(b) Plan Committee in anticipated litigation threatened by Schlichter, Bogard & Denton related to fees, investment options and other administration of the Emory University 403(b) Plan.   We are currently advising the University, the Board and the Committee regarding fiduciary duties and administration of the Plan, and other pre-litigation counseling.   Mr. Schlichter has indicated that he plans to file suit in the near term, and we anticipate that Emory may be part of a “second wave” of filings by the Schlichter firm, this time focused on large non-profit and/or educational institutions such as Emory that have 403(b) plans.
White v. Hilton Hotels Retirement Plan — We are representing the defendants in a putative class action seeks vesting status for participants who worked prior to ERISA’s effective date, died before going into pay status or worked at certain properties owned by unrelated entities.  
Cinotto v. Delta Air Lines, Inc., 674 F.2d 1285 (11th Cir. 2012) — Argued before the Eleventh Circuit in a case challenging the legality of an amendment freezing pension benefits under the anti-cutback rule.  The benefit formula was complex, and plaintiff was arguing she had accrued a right to “grow into” a more favorable calculation that applied once a participant reached early retirement age, which she had not done prior to the freeze.  Had she been successful, the plan would have had to pay tens of millions of dollars in additional benefits it thought had been frozen.  
Prezioso v. Prudential, 784 F.3d 797 (8th Cir. 2014) — Argued before Eighth Circuit question of whether SPD can resolve ambiguities in the formal plan document.  This was a tough argument because the Supreme Court has said the terms of the SPD cannot be enforced as the terms of the formal plan document.  The language in the SPD was favourable to us, but the plan language was not.  I was able to convince the Eighth Circuit that although the terms of the SPD could not be enforced, those terms could be used to construe ambiguous provisions in the formal plan.  
Gayle v. UPS, 401 F.3d 222 (4th Cir. 2005) — Argued before the Fourth Circuit the question of whether a plaintiff could sue after having missed the deadline to submit an administrative appeal.  The court found that once the administrative appeal deadline had been missed, the claim was forever barred.  This opinion provides helpful guidance to administrators in the common situation where a participant submits an untimely administrative appeal.  
White v. Coca-Cola, 542 F.3d 848, 850-51 (11 Cir. 2008) — Served as independent counsel to a plan committee for the purposes of a plan-wide challenge to a disability plan offset provision.  The plan language was ambiguous, and the court found the committee’s interpretation was appropriate, in part, because it had obtained an independent legal opinion as to the proper interpretation.  This opinion provides useful guidance on the helpful role legal opinions can play in the administrative process.  

Office Location

One Atlantic Center, Suite 4900
1201 West Peachtree Street
Atlanta, GA 30309-3424
United States


Practice Areas

Employee Benefits (ERISA) Law

Other Information

Gender: Male