Practice Areas & Industries: Duane Morris LLP


Employee Benefits and Executive Compensation Return to Practice Areas & Industries

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Practice/Industry Group Overview

How does an employer create and maintain effective employee benefits and compensation programs? The process requires the delicate balancing of employee needs, company culture, cost, competitive pressures, and administrative and regulatory complexity. Instead of offering "one size fits all" services, the members of Duane Morris' Employee Benefits and Executive Compensation (EBEC) Group recognize that creative thinking, planning, and a thorough understanding of the client's unique needs are an essential prerequisite to offering legal services that are in line with each client's expectations.

Our attorneys provide clients with the full range of employee benefits legal services. From qualified retirement plans to sophisticated equity compensation arrangements and from executive employment agreements to broad-based health and welfare plans, the members of the EBEC Practice combine practical experience with high-quality and efficient service that leads to practical solutions.

Range of Services

Qualified Retirement Plans

Our attorneys offer in-depth experience in the design, administration and ongoing compliance with respect to qualified plans. We have experience representing plans in a general counsel capacity, including contracting for services, fiduciary counseling, developing administrative policies and advising fund administrators and trustees. Our attorneys offer assistance with plan administration and management, including day-to-day support for in-house benefits personnel regarding plan transactions (e.g., distributions, loans, withdrawals, investment changes, and QDRO administration), participant communications, participant claims and inquiries and contractual relationships with plan service providers. The following types of qualified plans are supported:

  • 401(k) and other defined contribution plans
  • defined benefit plans, including cash balance and other hybrids
  • ESOPs
  • multi-employer plans

Nonqualified Deferred Compensation

Our attorneys design and draft NQDC plans and counsel clients on all aspects of their plans, including compliance with Internal Revenue Code section 409A. Our attorneys are currently providing guidance to clients on NQDC plans and the issue of pre-409A grandfathered deferrals and transition into Code section 409A-compliant plans.

Executive Compensation

Our attorneys design, draft and counsel clients on the tax and design implications of executive compensation plans, as well as related federal and state securities law, employment law and accounting considerations.

The EBEC Practice has assisted numerous clients in establishing option plans and other equity compensation arrangements, as well as providing guidance on rabbi trusts and other devices to provide security for nonqualified plans. Recent transactions include:

  • negotiating retention, severance and employment agreements
  • calculating "golden parachute" liabilities
  • creating an equity program for the U.S. executives of a foreign corporate parent
  • globalizing the equity incentive plan of a multinational company
  • creating SERPs and phantom plans for mid-level executives where equity is not available
  • creating nonqualified programs for executives of nonprofit organizations
  • designing an equalization program for transferring executives among foreign and U.S. affiliates

Welfare Benefit Plans

With increasing federal regulation of health benefits and rapid changes in the healthcare industry, compliance is becoming increasingly complex. Our attorneys act in a general counsel capacity and provide advice on the impact of many laws affecting welfare benefit plans, including, but not limited to HIPAA, COBRA, FMLA, ADA, ADEA and USERRA. We are often called upon to analyze existing programs to improve them and make them more efficient. We counsel employers and plan administrators in a wide offering of benefit plans, including:

  • health, life and fringe benefit plans
  • cafeteria plans/medical expense reimbursement plans
  • dependent care expense reimbursement plans
  • adoption assistance plans
  • education assistance plans
  • VEBAs
  • multi-employer health and welfare programs

Fiduciary Counseling

Our attorneys counsel plan trustees and administrators, business owners and executives regarding their fiduciary responsibilities in a broad spectrum of areas, including:

  • ERISA fiduciary status
  • ESOP trustees
  • prohibited transactions
  • advisory fees
  • investment of plan assets in nontraditional ventures

Corporate Transactions

Our attorneys are sensitive to the related benefits and compensation issues that impact transactional matters. When appropriate, we interface with our corporate, tax and finance attorneys to provide a complete range of services.

Financial Products

We provide advice to entities, such as insurance companies, that create and market financial products to employers and high net worth individuals. These include:

  • insurance company retirement plan products
  • new mutual fund trading platforms
  • fund-of-funds arrangement with a QPAM to limit potential fiduciary exposure
  • special tax sheltered annuity programs

We also work with employers to review and prepare financial products for their employees. These include:

  • split-dollar and other insurance arrangements
  • funded welfare programs
  • rabbi trusts and other methods of funding nonqualified plan accruals

Employee Communications

Frequently, litigation in the employee benefits area is based on faulty or incomplete communications of the salient provisions of retirement and welfare plans. Further, the government is requiring the communication of broader and more detailed information in connection with these plans and programs. Our attorneys have considerable experience preparing and reviewing communications materials, ranging from summary plan descriptions to COBRA and other notices to specialized materials for executives. We often create information packages that are both comprehensive and comprehensible.


Benefits-related litigation is one of the fastest growing sectors in the federal court system. Our attorneys work with employment and litigation attorneys to represent companies and individuals involved in benefits-related disputes. Often, these simply involve the application of the claims procedures set forth in retirement and welfare plans. However, with increasing regularity, we find these matters moving through the court system or to another dispute resolution process.

Our EBEC attorneys work with litigators in our Employment and Trial Practice Groups to provide practical advice on both the technical and procedural aspects of benefits-based litigation. This enables us to take advantage of the strengths of our individual attorneys in these representations. Examples of litigation projects include:

  • legal compliance reviews of plan documents and operations
  • representing plan administrators and financial advisors in fiduciary breach actions
  • representing liquidating employee benefit trusts
  • preventing the cloning of trade association programs
  • preparation of amicus briefs in benefits cases of national importance
  • advising clients on the ownership of stock associated with the demutualization of insurance companies
  • representing insurers in connection with covered claims on large fiduciary policies


Services Available

Articles Authored by Lawyers at this office:

Another Private Equity Filing Deadline Approaches: Do You Know Where Your BE-10s Are?
Piero Carbone,Richard P. Jaffe,Brian P. Kerwin,Thomas R. Schmuhl, May 25, 2015
For those who have not heard, another filing requirement of the U.S. government will require action by participants in the private equity industry. Form BE-10 is a mandatory filing required by the International Investment and Trade in Services Survey Act as part of the 2014 Benchmark Survey of U.S....

Philadelphia Sick Leave Law on Promoting Healthy Families and Workplaces Goes into Effect
, May 25, 2015
Philadelphia's mandatory sick leave ordinance, "Promoting Healthy Families and Workplaces," goes into effect on May 13, 2015. In connection with its enactment, the City of Philadelphia has now issued a mandatory poster.

Recent IRS and Congressional Focus on Micro-Captives
Jocelyn Margolin Borowsky,Hugh T. McCormick, May 15, 2015
Captive insurance companies have been used for risk management purposes since the 1960s, when industrial corporations found insurance for their risks either challenging to find in the marketplace, or expensive. One solution was to form wholly-owned and controlled insurance companies (hence the term...

California Court of Appeal Ruling Provides Further Guidance for Dealing with Trade Secret Claims Brought in Bad Faith
Karineh Khachatourian,Daniel T. McCloskey, May 11, 2015
On April 28, 2015, the California Court of Appeal issued its decision in Cypress Semiconductor Corporation v. Maxim Integrated Products, Inc., et al., affirming the trial court's finding that plaintiff Cypress Semiconductor Corporation brought its trade secret claim in bad faith and awarding...

City of Philadelphia Requests Proposals to Implement Online Auction for Sale and Assignment of Delinquent Real Estate Tax Liens
Louise S. Melchor,Brett L. Messinger, May 11, 2015
The City of Philadelphia recently announced a request for proposals to implement an online auction for the sale and assignment of some of the city's delinquent real estate tax liens. The auction will allow third parties to bid on the tax liens, with the successful bidder assigned the lien from the...

OFAC Releases Guidance Concerning Travel Between the United States and Cuba
Brian S. Goldstein, May 11, 2015
On May 5, 2015, the Office of Foreign Assets Control (OFAC) published a guidance document regarding travel between Cuba and the United States. Persons subject to the jurisdiction of the United States who are traveling to and from Cuba from the United States—either under a general license for...

Possible Shift of Perspectives on Breadth of NEPA Review; CEQ's Draft Greenhouse Gas Guidance
Sheila Slocum Hollis,Dennis J. Hough, May 11, 2015
Pursuant to the National Environmental Policy Act (NEPA),[1] and the corresponding NEPA regulations issued by the Council on Environmental Quality (CEQ)[2] and the respective reviewing agencies, federal agencies are required to consider the environmental impacts of proposed federal...

Winning Streak Continues in ITC Trade Secret Theft Investigations
Michael G. McManus, May 11, 2015
Section 337—the unfair trade practice remedy administered by the International Trade Commission (ITC or the "Commission")—has most often been used to counter importation of goods that infringe U.S. patents. A recent case, however, reinforces the concept that Section 337 can...