Employee Benefits & Executive Compensation

Drinker Biddle’s Employee Benefits and Executive Compensation team helps clients throughout the United States achieve their business and human resources objectives in this extensively regulated area. Our clients include national and international corporations, banks, insurance companies, mutual funds and other investment entities, utilities, transportation companies, hospitals, governmental units, schools, universities, churches and other non-profit organizations. We represent publicly traded companies, domestic subsidiaries of foreign companies, and privately held entities. The diversity of our client base and their human resource needs have given the team a broad range of experience in all aspects of employee benefits and executive compensation matters.

Executive Compensation.  Drinker Biddle has a sophisticated broad-based executive compensation practice that includes negotiating, drafting and implementing deferred compensation and equity compensation arrangements. Our clients span a broad spectrum – from start-up companies to small and mid-size privately-held companies to large publicly-traded companies.

Our practice includes negotiating on behalf of client companies, private equity managers and senior management executives, as well as drafting omnibus equity plans and agreements, supplemental executive retirement plans, employee stock purchase plans, profits interest plans and agreements, employment, severance and change in control agreements. We also advise our clients on the Securities Law aspects of equity compensation and executive compensation, draft prospectuses for equity plans, review proxy disclosures and prepare certain proxy tables.

We have carved out a niche in dealing with issues that arise in the private equity context, such as addressing the impact of extraordinary dividends paid by a portfolio company to private equity managers and option repricing, and crafting performance goals with the private equity manager in mind. We also have special expertise in the area of section 457A of the Internal Revenue Code, which is targeted toward deferral of compensation payable to managers of offshore hedge funds.

Transactional Practice.  We have extensive experience in benefits issues arising in the transactional context. We advise and counsel on the employee benefits and executive compensation aspects of corporate transactions, including performing a pre-sale audit to identify potential benefit plan issues; evaluating statutory and operational compliance of a seller’s employee benefit plans from a buyer’s perspective; advising on and crafting indemnification provisions to address potential successor liability issues, especially with regard to a seller’s participation in a multiemployer plan; and dealing with post-closing matters related to the integration of a seller’s benefit plans into a buyer’s benefit structures.

Where transactions involve international benefits, we assist in identifying and coordinating benefits due diligence with foreign counsel to address international compensation and benefit issues. Our work has included identifying and resolving specialized tax issues that arise in the context of deal work – such as golden parachutes, equity and qualified and nonqualified plan termination issues. In the private equity context, we advise on plan asset issues and assist private equity funds in complying with the VCOC exception under the plan asset rules.

Mergers and Acquisitions.  In mergers and acquisitions, we advise employers on employee benefits and executive compensation matters and negotiate and draft the benefits provisions of sales agreements. We conduct due diligence regarding the employee benefits and executive compensation of target businesses. We also advise on plan mergers, spinoffs, transfers of assets and liabilities, partial terminations and benefit distribution issues. We have particular experience in dealing with multiemployer pension plans.

Commercial Lending.  In commercial lending, we advise borrowers and lenders on the employee benefits and executive compensation aspects of business loans and negotiate and draft the applicable provisions in loan agreements.

Workouts and Reorganizations.  In workouts and reorganizations, we advise debtors and creditors on employee benefits and executive compensation aspects of Chapter 11 and Chapter 7 bankruptcy filings and represent debtors in bankruptcy with respect to their benefit plans.

Benefit Plans.  Unlike many large firms, we not only support our transactional practices, but also maintain a substantial “benefits only” practice. We handle all aspects of section 401(k), pension, cash balance, profit-sharing, and stock bonus plans for our clients and obtain Internal Revenue Service approval for new and amended plans. As part of our executive compensation work, we deal with incentive stock option, nonqualified stock option, stock grant, employee stock purchase, stock appreciation rights and phantom stock plans of our clients. We also counsel clients on nonqualified deferred compensation (“top-hat”) plans, supplemental retirement plans, rabbi trusts, employment agreements, severance agreements, change-in-control agreements and retention bonus programs.

We counsel employers and lenders about all aspects of employee stock ownership plans (“ESOPs”). For example, we have assisted clients and their shareholders with section 1042 transactions (the rollover of gain on the sale of employer stock to the employer’s ESOP).

We advise our governmental clients about governmental plans and section 457 deferred compensation plans, and our tax-exempt clients about section 403(b) tax-deferred annuity and custodial account plans and section 457 deferred compensation plans.

We also work with health and accident, dental, severance, life insurance, dependent care and disability plans, including cafeteria (flexible benefit) plans, and voluntary employees’ beneficiary associations.

Advisory, Compliance and Consulting Services.  We advise our clients on compliance with COBRA, the Americans with Disabilities Act, the ADEA, and the Family and Medical Leave Act. We prepare annual returns/reports (Forms 5500) and forms used in the daily administration of our clients’ plans. We represent clients in IRS and Department of Labor audits and advise them about (and prepare filings under) the IRS’s Employee Plans Compliance Resolution System and the DOL’s Voluntary Fiduciary Correction Program and Delinquent Filer Voluntary Correction Program.

We advise our clients regarding fiduciary responsibility and prohibited transactions and we draft requests for DOL and IRS exemptions, opinions and rulings.

Assistance to Other Practices.  Our team works closely with a number of other practices in the firm, particularly with the Corporate and Securities Practice Group when employee benefits and executive compensation issues involving mergers, acquisitions, and sales of businesses arise and we help that practice group deal with securities issues involving employee benefits and executive compensation. We also assist the Investment Management Practice Group when ERISA issues arise in connection with the investment of money held by employee benefit plans and individual retirement accounts in mutual funds and other investment entities.

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Diversity

Our commitment to diversity at Drinker Biddle reflects our belief that by more accurately reflecting our clients and our communities, we are more effectively positioned to understand their needs and objectives, in all their many facets.

Creativity, innovation, cooperation and mutual respect are the natural result of an environment in which individual contributions are valued, where biases based on race, gender and other factors are absent, and legal knowledge combines with unique world views. Drinker Biddle has always had a commitment to civility and respect for all, and this is reflected in our core values and business strategy. We embrace an evolving and tolerant firm culture, one that is eager to engage and include colleagues from a wide range of backgrounds.

Diversity Committee

Our Firmwide Diversity Committee is charged with ensuring our firm reflects the rich diversity of the communities and clients we serve. As such, one of the committee’s primary objectives is to proactively recruit, retain, promote to partner and foster the professional development of talented minority lawyers. The committee is co-chaired by one of our most senior partners, Neil Haimm, and Jesse Ruiz, one of the country’s most energetic and talented Latino lawyers. More broadly, the committee is charged with implementing various programs and processes in the Diversity Strategic Plan, including (but not limited to) recruiting, retention, assignment management and overall associate development.

We also have established Regional Diversity Committees that can concentrate on our diversity goals at the local level. Most have established working groups that concentrate on the areas of hiring, retention and development, marketing and client development, and staff alignment and initiatives.

Recruiting

The firm’s commitment to diversity is demonstrated by its many efforts to recruit minority law school graduates and experienced lawyers. We regularly help coordinate and participate in a number of minority attorney recruitment programs. Members of our hiring committee and recruitment staff travel to law schools around the country, meeting with first-year minority students to increase interest in the firm’s Summer Associate program and conducting interviews with graduating students for our associate positions.

Further, the firm regularly offers time, money and other resources to help support and encourage minority students as they pursue their educational and professional goals. We work with student groups at various law schools to provide mentoring and financial assistance. We sponsor scholarships given annually to deserving minority law students by the Hispanic Lawyers Scholarship Fund of Illinois and the Cook County Bar Association, and we sponsor scholarships and paid internships for deserving minority students at the newly formed Drexel University School of Law in Philadelphia.

In addition, resources are dedicated to ensure that our diversity commitment is reflected in our hiring practices. A few of our efforts include participating in minority job fairs nationally (Vault/MCCA Job Fair, Cook County Minority Job Fair, Philadelphia Area Minority Job Fair, etc.), committing to hire at least one summer associate through a minority-focused organization (Philadelphia Diversity Law Group), ensuring that our firm’s core interviewer group has a diverse constituency, insisting upon diverse representation in interview schedules, financially supporting minority law student organizations nationally (Black Lawyers Student Association, Latin American Student Association, ALIANZA), placing job postings on websites targeted to a diverse lawyer audience (MCCA, Hot Jobs.com, etc.) and holding outreach activities to meet minority candidates and foster minority hiring practices in various cities in which we maintain offices.

Sponsorship and Organization of Major Events

Drinker Biddle sponsors, organizes and participates in a variety of major events addressing issues important to women and minorities both in the legal profession and in the wider business communities that we serve. The following list is a sampling of recent events; you can also click here to see the events that the Diversity Committee has hosted:

  • American Conference on Diversity Humanitarian Dinner
  • Barrister’s Association of Philadelphia Annual Barrister’s Ball
  • California Minority Counsel Program 19th Annual Business Meeting
  • The Enterprise Center’s “Passing the Torch” Awards
  • Garden State Bar Association’s 33rd Anniversary Scholarship & Awards Gala
  • Hispanic Lawyers Scholarship Fund of Illinois Annual Awards
  • Hispanic National Bar Association National Convention 
  • Mexican American Legal Defense and Educational Fund Annual Gala
  • National Association of Women Lawyers Annual Meeting
  • NBA/WLD “Celebration of Firsts” Awards
  • NBA Healthcare Law Symposium 2008
  • National South Asian Bar Association 5th Annual Convention
  • MCCA Midwest Region Diversity Dinner
  • MCCA Northeast Region Diversity Dinner
  • Philadelphia POWER Seminars and Dinner
  • Spanish Coalition for Jobs, Inc. Annual Awards
  • Villanova University School of Law 3rd Annual Diversity Symposium

 

Professional Development

Once a lawyer has joined our firm, our work is far from complete. A stable, supportive environment is critical to encouraging the exploration of professional interests and the ongoing development of legal skills.

The firm has established varied mentoring programs: a peer integration mentor is assigned for every new associate’s first year at the firm, a Diversity Committee Watch Program has been put into place (minority associates are tracked to ensure that they are given ample opportunity to work on our most significant matters and clients) and a voluntary “opt-in” mentor program in which associates select their own mentors among partners has been initiated.