Employee Benefits & Executive Compensation

For more than 40 years, Sutherland has helped clients find practical and innovative solutions to employee benefits and executive compensation issues.

Sutherland’s skilled employee benefits and executive compensation team is adept at finding creative solutions to our client’s legal and technical challenges. With 14 attorneys dedicated to this practice area, we have substantial knowledge and understanding in the nuances of qualified retirement plans, health and welfare benefits and executive compensation. We counsel employers in connection with ongoing plan design and compliance, corporate transactions and negotiations with government agencies, as well as financial services companies with respect to retirement products and services.

Our broad-based knowledge and varied backgrounds are key in helping clients find innovative approaches to employee benefits and executive compensation. Our attorneys have served at the Department of Labor and on Congressional staffs, and have gone on to leadership positions at the U.S. Treasury. We represent public and private companies, non-profit entities and governmental organizations; and we have extensive experience representing providers of retirement plan and other benefits services and products.

We are comfortable working with various departments within client companies—including HR, tax and legal—while maintaining effective communications and an appropriate chain of command. Each of our benefits and executive compensation attorneys has particular specialties, but we do not work in silos—we all have substantial experience with the different types of plans and transactions in our field.

Why Sutherland
Health and welfare understanding.
We have advised on health and welfare benefits, including compliance under the Internal Revenue Code and ERISA, over a substantially longer period than most law firms. This includes health savings accounts and reimbursement arrangements, flexible spending accounts and other cafeteria (section 125) plans. We are thoroughly familiar not only with traditional health and welfare benefit programs but also with post-retirement life and medical benefits, voluntary employees' beneficiary association (VEBA) trusts, severance and vacation pay programs and other similar arrangements. We are actively counseling insurers and several Fortune 500 companies on employer compliance with national health reform under the Patient Protection and Affordable Care Act.

Sophistication on executive matters. We are sensitive to the dynamics of executive compensation issues and deal with them effectively. We regularly assist in negotiating high-level executive employment agreements and structuring virtually all forms of elective and non-elective compensation and incentive programs. We advise on life, health and other welfare benefits for executives as well as issues involving company-provided transportation and other fringe benefits. Our lawyers are well versed in the securities laws applicable to executive compensation.

M&A experience.
We negotiate the benefits provisions in transactions, perform due diligence, draft acquisition agreements and agreements used in spin-offs, and assist in implementing the integration or transition to new benefits arrangements on behalf of both buyers and sellers. At times, we participate as part of a team from the firm handling all aspects of the transaction; at other times, clients engage us specifically to resolve employee benefits issues.

Retirement incentives and layoff cushions. We assist a number of clients in structuring retirement incentives, right-sizing programs and similar arrangements in accordance with tax, ERISA, age discrimination and other legal requirements. We address enhanced benefits both inside and outside qualified pension plans, appropriate welfare benefit program continuation and the design and implementation of effective ADEA waivers in the context of involuntary layoffs and voluntary window programs.

Federal knowledge.
We regularly represent clients in dealing with the various federal regulatory agencies responsible for employee benefits. On some occasions, we seek guidance or relief from those agencies; on others, we respond to issues raised by an agency. We are well acquainted with key personnel at the Treasury, IRS, DOL, PBGC, SEC and EEOC, and with the formal and informal procedures for dealing with them.

Nuts and Bolts

Sutherland's employee benefits and executive compensation practice has broad and deep experience in all aspects of the field including:

  • Qualified retirement plans
  • Compliance reviews
  • IRS correction programs, including self-correction (SCP), the voluntary correction program (VCP) and the Audit Closing Agreement Program (Audit CAP)
  • Employee stock ownership plans (ESOPs)
  • ERISA’s fiduciary and prohibited transaction rules
  • ERISA litigation
  • Health plans
  • Patient Protection and Affordable Care Act (PPACA)
  • HIPAA and COBRA
  • Welfare programs and benefits
  • Executive compensation
  • Code section 409A
  • Deferred compensation
  • Proxy compensation disclosure
  • Equity compensation
  • Code section 162(m)
  • Fringe benefits
  • Payroll tax and withholding

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We know that people are truly the most valuable asset in any endeavor, and providing effective benefits and compensation plans is critical to business.

Selected Experience


Sutherland advises a Fortune 30 consumer products company on employee benefits and executive compensation matters.
This engagement includes advice on the client's qualified retirement plan matters, covering more than 40,000 U.S. employees. We advised the company on the complicated fiduciary and tax law considerations in connection with a $1.5 billion corporate transaction that affected company stock held in retirement plans. We also advised on executive compensation matters, including the correction of operational and plan document errors for nonqualified deferred compensation under Code section 409A.

Sutherland provides full-spectrum advice to a Fortune 100 global manufacturing company on equity and executive compensation programs.
Sutherland provides ongoing advice to a Fortune 100 global manufacturing company regarding all aspects of its equity and executive compensation programs, including tax, securities and contract issues. In addition, we handle separation agreements for internationally mobile employees.

Represented Rio Tinto in the $185 million sale of Alcan Cable in North America and China.

Represented Rio Tinto in the $151 million sale of its Alcan Cable business in the United States, Canada and Mexico, and in the related $34 million sale of the Alcan Cable business in China.

Sutherland advises on fixed and variable insurance products.

Sutherland advises insurance companies on fixed and variable products for the retirement market.

Sutherland advises on bank collective trust funds.
Sutherland advises banks on structuring and ERISA compliance issues in bank collective trust funds.

Sutherland advises on ERISA issues in derivatives and securitizations.
Sutherland advises on ERISA issues in derivatives and securitizations.

Sutherland assists clients with ERISA fiduciary advice structures for securities firms.

Sutherland assists with ERISA fiduciary advice structures for broker-dealers and investment advisers.

Sutherland assists with plan participant investment advice arrangements.
Sutherland assists with the structuring and regulatory compliance of investment advice arrangements for plan participants.

Sutherland advises on revenue sharing arrangements and defends in audit and litigation.
Sutherland advises on revenue sharing and other indirect compensation arrangements, and when the situation warrants, defends in Labor Department audits and litigation.

Sutherland advises sponsors and providers on 408(b)(2) and 404a-5 disclosures.
Sutherland advises plan sponsors, retirement platform providers and other service providers on 408(b)(2) and 404a-5 disclosures.

Sutherland helps clients with worker classification issues and consequences for employee benefits.
Sutherland advises on worker classification issues in various industries, consequences for employee benefits and resolution of benefits issues. Sutherland acted as managing counsel in Nationwide Mut. Ins. Co. v. Darden (Sup.Ct. 1992).

Sutherland client wins tax court declaratory judgment reversing revocation of qualified plan exemption by IRS.
Sutherland successfully petitioned the U.S. Tax Court for a declaratory judgment reinstating the tax exemption of a Taft-Hartley pension plan revoked by the IRS.

Sutherland counsels clients with captive insurance structures for employee benefits.

Sutherland attorneys, who pioneered DOL prohibited transaction exemptions, counsel clients with the design, regulatory approval, implementation and operation of captive insurance arrangements for employee benefits.

Sutherland assists multiple insurance companies with acquisition/disposition-related employee benefits issues.
Sutherland assists multiple insurance companies with the employee benefits aspects of stock and asset acquisitions and dispositions and integration issues for the companies' employees and benefits products marketed by the companies.

Sutherland advises major entertainment company on employment tax related to services company arrangement.
Sutherland advised a major entertainment company regarding employment tax issues in connection with a services company arrangement.

Sutherland counsels major U.S. telecom company on fringe benefit issues.

Sutherland advised a major U.S. telecommunications company on fringe benefit tax issues, including company-provided discount services, de minimis fringes and working condition fringe benefits.

Sutherland aids leading energy company in nondiscrimination testing of retirement plan.

Sutherland assisted a 10,000-employee energy company in its qualified retirement plan nondiscrimination testing by developing a plan for managing risk as its major workforce demographics changed substantially over time.

Sutherland advises on hundreds of plan financial products and service arrangements.
Sutherland advises on the design and operation of several hundred insurance, real estate and investment products; consulting, investment advisory, investment management and broker-dealer arrangements and record keeping and other plan service arrangements.

Sutherland counsels a government entity on multijurisdictional defined benefit plan compliance issues.

Sutherland counseled a large government entity on complex compliance issues involving a multijurisdictional defined benefit plan.

Sutherland advises numerous types of entities on 403(b) issues.
Sutherland advises public and private educational institutions and nonprofit employers, as well as financial institutions on 403(b) plan compliance issues and assists a major quasi-governmental entity in extensive negotiations with multiple plan service providers in connection with section 403(b) arrangements.

Sutherland counsels clients on unusual structures and other issues in qualified plans.
Sutherland counsels clients on unusual structures in qualified plans, including 401(h) retiree medical account arrangements and variable annuity accumulation and distribution options, as well as more common issues regarding various cash balance plan designs, plan mergers or spin-offs and implementation of automatic enrollment features.

Sutherland handles regulatory filings and negotiations for benefit plans.
Sutherland handles filings with Department of Labor (DOL), Internal Revenue Service audits (IRS) and Pension Benefit Guaranty Corporation (PBGC), including determination letters applications, private letter ruling requests, prohibited transaction exemption applications and requests for advisory opinions for qualified plans, welfare plans and other benefit arrangements.

Sutherland counsels Fortune 500 companies on health reform compliance.
Sutherland provides ongoing and routine counseling to several Fortune 500 companies on employer compliance with the PPACA.

Sutherland advises several insurance clients on various compliance issues in the Affordable Care Act.

Sutherland advises several insurance clients on various matters related to compliance with the Affordable Care Act, including reporting and disclosure requirements, the application of the medical loss ratio provisions to group health plan products and the long-term implications of insurance market mandates on various health plan products.

Sutherland advises on retiree medical funding through VEBAs and other structures.

Sutherland advises on retiree medical funding through voluntary employee beneficiary associations (VEBAs) or otherwise. We assist with the design, establishment, operation and termination of VEBAs for retiree medical, long-term disability and other benefits and advise on funding, deduction and UBIT issues with respect to VEBAs.

Sutherland helps Fortune 100 company update welfare benefit plans.

Sutherland assisted a Fortune 100 company with amending and updating its welfare benefit plans for multiple business lines.

Sutherland assists clients dealing with federal agencies overseeing PPACA.
Sutherland assists clients with the process of directly engaging federal administrative agencies (DOL, HHS/CCIIO, IRS) regarding PPACA compliance and policy issues.

Sutherland works with global reinsurer on the redesign of its equity compensation program.

Sutherland worked with an international reinsurer on the redesign of its global equity compensation program, including U.S. tax, employment, and securities issues. Tax issues included section 409A compliance, payroll tax withholding, section 3121(v), and section 83 in the context of a unique restricted stock unit/phantom stock design.

Sutherland advises financial institution on its post-merger stock option plan.

Sutherland advised a financial institution regarding the design and implementation of a post-merger stock option plan for key employees.

Sutherland advises a private college on key aspects of a nonqualified retirement plan.
Sutherland advised a private college on key aspects of a nonqualified retirement plan combining a section 457(b) and a section 457(f) arrangement.

Sutherland counsels global textile firm on section 409A effects on executive employment agreements.

Sutherland counseled a global textile manufacturer on the application of section 409A to its executive employment agreements. We drafted the company's equity incentive plan and coordinated review and advice on labor, tax and securities issues for grants to be made in six other countries to U.S. and British expatriates and citizens of those countries.

Sutherland advises Fortune 100 insurer on benefits and executive compensation in retirement services company acquisition.

Sutherland advised a Fortune 100 company with regard to the employee benefits and executive compensation aspects of a $50 million stock acquisition of a retirement services company.

Sutherland advises BDC on merger-related employee issues.
Sutherland advised a BDC regarding the treatment of complex employment, retention and equity arrangements related to its $850 million merger into another business development company.

Sutherland advises stable value fund entities on appropriate terms for products following financial downturn.
Sutherland advises stable value fund sponsors and wrap providers on the appropriate terms for these products following the financial downturn. We also assist multiple new market entrants who seek to fill some of the diminished capacity in this market.

Sutherland develops first-of-its kind retirement income products.
Our team is deeply involved in developing lifetime income products for retirement plan participants. That includes advising on the structure and design of the first product that will divide the income guarantee among more than one annuity issuer for credit diversification purposes and seeking regulatory guidance on various products from IRS/Treasury and state insurance commissioners.

Sutherland advises one of the world's largest food and snack manufacturing companies on post-acquisition benefits and compensation matters.
Sutherland advised the buyer on certain integration issues relating to employee benefits and executive compensation matters (including golden parachute and related issues), following the $15-plus billion acquisition of an international snack food manufacturer, which resulted in the formation of one of the world's largest food and snack manufacturing companies.

Sutherland advises Allied Capital in Emporia Capital asset purchase.

Sutherland advised Allied Capital Corporation in its acquisition of substantially all the assets of Emporia Capital Management.

Sutherland wins $400 million in IRS audit case for Fortune 100 company.

Sutherland represented successfully a Fortune 100 company in the resolution of a more than $400 million pension audit dispute with the IRS in which the IRS alleged multiple prohibited transactions and other violations.

Sutherland negotiates the acquisition of financial products for benefit plans.
Sutherland negotiated the acquisition of more than 50 sophisticated investment and insurance products for benefit plans and sponsors.

Represents retirement product and service providers before the IRS, Treasury, EBSA, PBGC, SEC, FINRA, OCC and state regulators.
Represents retirement product and service providers in matters before the IRS, the U.S. Department of Treasury, the DOL's Employee Benefit Security Administration (EBSA), the Pension Benefit Guaranty Corporation (PBGC), the U.S. Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), the Office of the Comptroller of the Currency (OCC) and state regulators.

Sutherland manages more than 45 federal tax and ERISA cases.

Sutherland managed more than 45 tax and ERISA cases in federal court.

Sutherland advises a global reinsurer on the redesign of its equity compensation program.

Sutherland advised an international reinsurer on the redesign of its global equity compensation program, including U.S. tax, employment and securities issues. Tax issues included section 409A compliance, payroll tax withholding, section 3121(v), and section 83 in the context of a unique restricted stock unit/phantom stock design.

A Fortune 30 consumer products client seeks Sutherland's help with deferred compensation issues.

Sutherland advised a Fortune 30 consumer products company on the correction of deferred compensation issues under section 409A, including operational and plan document errors. We devised a practical solution that minimized risk while maintaining participant elections to the maximum extent possible.

Sutherland assists clients with early retirement windows and reduction-in-force programs.
We help clients develop, design and document early retirement windows and reduction-in-force programs in retirement plans and severance arrangements. This counsel includes analysis of qualified plan nondiscrimination issues and compliance with the Age Discrimination in Employment Act (ADEA) and obtaining waivers under ADEA.

Sutherland aids clients with compliance reviews of qualified retirement plans.
Sutherland helps clients with compliance reviews of qualified retirement plans and the use of IRS correction programs for over 100 plans. These include self-correction (SCP), the voluntary correction program (VCP) and the Audit Closing Agreement Program (Audit CAP). The filings include group submissions, filings for 403(b) tax sheltered annuity arrangements and all types of qualified retirement plans under Internal Revenue Code section 401(a).

Sutherland handles the employee benefits issues in a $1 billion international joint venture.

Sutherland handled the employee benefits aspects, both due diligence and transition planning, of a $1 billion international joint venture.

Sutherland aids public companies of all sizes on executive compensation proxy disclosure and "say on pay" materials.

Sutherland assists companies in the Fortune 100, as well as mid-size and smaller companies, on their executive compensation proxy disclosure and “say on pay” materials. We draft and critique the most sensitive portion of the disclosure, including employment agreement descriptions and summary compensation table footnotes. Sutherland assisted one company with potentially controversial pay practices to explain its practices in the disclosure, helping to achieve over 90% shareholder approval in “say on pay” vote.

Sutherland advises numerous and varied clients with all aspects of qualified plan compliance.
We advise clients with all aspects of qualified plan compliance, from plan design and drafting to interim and final amendments and plan termination. Clients include public and private companies, nonprofit organizations, governmental entities, and financial institutions maintaining prototype plans and plan administration facilities.

Sutherland represents individuals in negotiation of C-suite employment agreements.

Sutherland represents individuals in negotiating CEO or other executive officer employment agreements with large public companies, private equity firms owning public companies and other financial institutions.

Sutherland aids major companies and tax-exempts in deferred compensation compliance.

Sutherland advises numerous Fortune 25 to Fortune 200 companies and tax-exempt organizations in redesigning deferred compensation plans for compliance with Internal Revenue Code section 409A nonqualified deferred compensation rules, and ongoing operational issues, including correction of document and operational errors. The firm also assists public companies with compliance with section 162(m) performance-based compensation requirements and section 280G golden parachute issues in plan design and operation and related executive compensation proxy disclosures.

Sutherland advises Altria on employees' benefits in spin-off.
Two of the largest public company spin-offs took place when the Altria Group, Inc. shed Kraft Foods, Inc. and Philip Morris International, Inc. Sutherland advised Altria Group, Inc. on all employee benefits issues in connection with the dispositions.

Represented British Nuclear Fuels plc in the $5.4 billion auction sale of its U.S. subsidiary, Westinghouse Electric Company, to Toshiba Corporation.
Represented British Nuclear Fuels plc in all aspects of the $5.4 billion auction sale of its U.S. subsidiary, Westinghouse Electric Company, to Toshiba Corporation.
 

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Peer Reviews

  • 4.8/5.0 60 reviews
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    4.8/5.0
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Diversity

§  “Diversity at Sutherland Asbill & Brennan LLP” to “Diversity at Eversheds Sutherland (US) LLP”

§  “Diversity” section:

o   The firm’s emphasis on diversity is reflected in numerous ways throughout the firm, such as the manner in which we recruit lawyers and other employees, our work-life policies and our professional service efforts. We have been recognized for our achievements in diversity.  More importantly, we understand the significant role a diverse community plays in the firm's growth and development.

§  “Our Awards and Recognitions” section:

o   Eversheds Sutherland (US) LLP continues to be recognized for its efforts to promote diversity in the workplace and in the legal profession. In 2016 we were named a “Best Place to Work for LGBT Equality,” having earned a perfect 100 score on the Human Rights Campaign’s Corporate Equality Index, and we also were ranked a Top 100 Firm for Minority Attorneys by Law360. In addition, the firm was awarded the Gold Standard Certification for the fifth consecutive year by the Women in Law Empowerment Forum.

§  “Our Commitment” section:

o   Eversheds Sutherland (US) LLP is committed to promoting diversity within the firm and in the legal profession.  We believe that diverse skills, knowledge and viewpoints make us a stronger, more productive law firm.  We hire and promote qualified lawyers and other professionals regardless of race, color, national origin, religion, disability, gender, gender identity or sexual orientation.  We understand that diversity enhances our value to clients by allowing us to staff our client teams with professionals who possess broad experiences and a spectrum of perspectives.

o   Eversheds Sutherland (US) LLP has a cross-office Diversity Committee with responsibility for supporting and enhancing our firm culture.  Our committee has helped coordinate and lead a number of efforts to advance diversity within our firm and the community. Affinity groups at the firm serve as support networks for attorneys of color; women lawyers; and gay, lesbian, bisexual and transgender attorneys.

o   We are committed to working with our clients as they pursue the common goal of a professional workplace where opportunity is available to all.

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