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Services Available
Plan Implementation
Our broad experience includes the design, maintenance and implementation of defined benefit plans, defined contribution plans (with particular emphasis on 401(k) plans), ESOPs and other stock bonus plans, self-funded health plans, welfare benefit plans (including retiree medical plans, short and long term disability plans, medical expense reimbursement plans, health reimbursement arrangements and flexible spending arrangements), dependent care and other fringe benefit plans; incentive equity plans (with particular emphasis on incentive and nonstatutory stock option plans and restricted stock plans), phantom equity plans, deferred compensation plans including supplemental executive retirement plans and excess benefit plans, severance and change in control agreements, and funding mechanisms such as rabbi trust and voluntary employee beneficiary associations (VEBAs).
Fiduciary Exposure
Our group advises clients about their fiduciary duties under ERISA (and under state law for governments). In a post-Enron world, fiduciary duty issues are at the forefront of compensation, pension and welfare benefit planning and operation. We are especially well-versed in dealing with these issues and in assisting clients with compliance. We educate fiduciaries about their duties and create legal structures to protect the fiduciaries. We have formulated and implemented state of the art legal structures to assist plan fiduciaries with their obligations and limit their ERISA exposure and we serve as legal counsel to the benefit committees of several major companies.
Advocacy
We represent our clients before the IRS, the Employee Benefits Security Administration, and the Pension Benefit Guaranty Corporation (PBGC). We routinely guide plans through EPCRS and DFVC, the remediation programs of the IRS and the Department of Labor. We have successfully represented clients in numerous plan audits conducted by these agencies over several years, generally reaching dismissals of the audit without penalty.
Reporting, Disclosure and Compliance
Our practice group has established special expertise in tax compliance to assist our clients in meeting the complex rules of the Internal Revenue Code and ERISA. Many clients seek advice with respect to filing and disclosure requirements imposed by ERISA. We assist clients, plan administrators and accountants in making certain that all components of compliance are met. Our goal is to anticipate our clients' needs in light of current trends, pending legislation and regulations. No tax-qualified plan designed or maintained under our supervision has ever been disqualified for any reason.
We also assist enterprises that have engaged in prohibited transactions to correct the defalcations and to limit their costs and penalties. We review plans and make recommendations for corrections to ensure tax and ERISA compliance.
Privacy Regulations
Our practice group designs, drafts and assists with the implementation of health benefit plans. We also advise our clients regularly with respect to the complicated privacy and security rules for health care plans mandated by HIPAA and the health care continuation rules mandated by COBRA and applicable state statutes.
Mergers and Acquisitions
Corporate transactions require expert evaluation of all parties' benefit and compensation obligations and programs. We have had great success in negotiating the role of employee benefits programs in mergers as well as stock and asset transactions.
Planning and Litigation Challenges
Benefits tax law and ERISA are extremely complex. We have expertise in the controlled group and affiliated service group rules, in nondiscrimination testing, in qualified separate lines of business, in anti-cutback rules, in section 83 planning, and in ERISA preemption and subrogation, among the many complicated arenas involved in our day-to-day benefits practice.
In addition to having tax experience, we are heavily involved in the employment law components of ERISA. We work closely with labor and employment lawyers in drafting employment and severance agreements and in handling claims appeals and arbitration arising from claim disputes. Our ERISA litigation group handles complex litigation matters for several major companies and insurance clients.
Representative Projects
Our Benefits Law Group enjoys long-term in-depth relationships with our clients. We provide daily benefits guidance to the clients discussed below on retirement plans, health and welfare plans, and executive and equity compensation. The projects described below simply reflect some of the more significant recent projects in which we have been involved.
Employee-Owned Retailer
We represented a large retailer in a benefits-driven $1 billion plus restructuring transaction. We restated the ESOP in connection with the restructuring, which, along with the transfer of the sponsorship of the ESOP to a newly formed S-corporation, included unsecured loans from a syndicate of lenders and the private placement of debt with numerous insurance companies.
Publicly Traded Telecommunications Company
We developed a self-audit procedure for the company relating to several defined benefit plans and designed an ERISA compliant fiduciary structure, including committee charters, investment policies, and indemnification agreements. We served as the primary point of contact in responding to a Department of Labor audit on four retirement plans and advised the company on multiple issues arising from its dispositions and acquisitions of several subsidiaries, including Code section 409A implications of an assumed severance plan, a company decision to reject sponsorship of an underfunded defined benefit plan, and retention of employer stock in its qualified plans.
Multi-National Engineering Firm
We counseled the engineering firm on issues relating to the assumption of site-based retirement and health benefits for both collectively bargained and non-collectively bargained employees whose participation in the plans was mandated by government contracts. We participated in sessions with government agencies to pursue legislative, regulatory, and practical solutions to relieve the firm from excessive liability for retiree benefits.
Publicly-Traded Bank
We designed and implemented Code section 409A compliant equity incentive and nonqualified deferred compensation plans (including the associated rabbi trust) for the bank's officers, considering implications of the design under Code sections 162(m) and 80G. The equity plan contains restricted stock, restricted stock units, incentive and nonqualified stock options, stock appreciation rights and phantom equity awards. We worked with the bank to ensure endorsement of the equity plan by Institutional Shareholder Services.
International Gold Mining Company
We guided a major public gold producer through the emplyee benefits issues related to its acquisition of another gold mining company, including defined benefit planning, the merger of 401(k) plans, cafeteria and group medical plans, and executive compensation plan design. We again partnered with this client in another plan merger process with an acquisition that closed in January 2006. A member of our Benefits Law Group serves as counsel to the fiduciary committee responsible for all ongoing plan administration.
Multi-State Distributor
We dissolved the distributor's self-funded medical plan trust. This involved the analysis of prohibited transaction, state law and ERISA fiduciary compliance issues, as well as coordination of corporate governance issues involving several related entities. In connection with the dissolution, we restated the medical plan document and advised the distributor of issues relating to retiree health plan coverage.
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