An important part of our practice involves helping clients manage the constantly changing, increasingly complicated employee benefits area. We design and implement qualified plans of all types — pension, profit sharing, stock bonus and cash or deferred (Section 401(k)) plans. Representing clients before the IRS, the Department of Labor and the Pension Benefit Guaranty Corporation, we prepare submissions for tax qualification, counsel clients on compliance with frequent legislative and regulatory changes and advise on plan amendments, restatements and terminations. We work extensively with clients to identify and correct plan defects under the self-correction programs established by the IRS. As the IRS has escalated its activity in auditing the growing number of Section 401(k) plans, we have substantially increased our participation in resolving controversies that arise in IRS and Department of Labor audits.
Our clients include multinational enterprises in a wide variety of industries, from manufacturing, real estate, insurance and services to professional sports and hotel and casino operations. Plan sponsors and administrators look to us for guidance in discharging their administrative and fiduciary responsibilities under the Internal Revenue Code and ERISA. We counsel ERISA fiduciaries and IRA beneficiaries on the investment and management of plan assets to avoid application of the prohibited transaction rules, including securing exemptions from the Department of Labor. We advise investors on the establishment and operation of real estate and venture capital operating company (REOC and VCOC) entities and other investment funds to provide structures that conform to ERISA’s plan asset regulations. We also assist clients with “cafeteria plans,” VEBAs and welfare benefit plans.
We are often called upon to review employee benefit plan issues in connection with mergers and acquisitions, corporate reorganizations, leveraged stock and asset purchases and other restructurings. Through our active involvement in negotiating representations, warranties, covenants and indemnities, we are able to identify liabilities that may arise from the transaction and devise strategies to deal with them. Potential liabilities include underfunded pension plans, “withdrawals” from collectively bargained multi-employer pension plans, “vesting” of retiree medical benefits, payments to executives contingent upon a change in control and many others. We help acquiring companies integrate employee benefit and executive compensation arrangements into their own employee benefits structure, so as to avoid unnecessary expense and liability.
