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Practice Areas :
Employee Benefits, Compensation and ERISA
Members of the Patton Boggs ERISA, Employee Benefits and Executive Compensation Practice Group guide clients through the complex legal issues related to ERISA, executive compensation and employee benefit plans. In conjunction with our Private Capital Investment Group, we also offer broad, interdisciplinary experience in complex financing transactions and fiduciary counseling to institutional investors, trustees and other fund fiduciaries.
Our attorneys have extensive experience in all aspects of employee benefits counseling and representation, including advising large institutional clients. We routinely represent sponsors of all types of retirement plans, including 401(k) plans, defined benefit plans and ESOPs; health and welfare plans, including fully-insured and self-insured group health plans, disability plans and flexible spending account plans; and executive compensation arrangements, including nonqualified deferred compensation, change in control agreements, severance plans and stock option plans.
Our team represents institutional investors including corporate, nonprofit and government sponsors of employee benefit plans, Taft-Hartley funds, investment advisory firms and insurance companies in all aspects relevant to fiduciary counseling. Our professionals have an in-depth knowledge of the taxation, compliance and governance issues institutional investors face in the creation and administration of large-scale pension plans. We help clients navigate the numerous legal issues that arise in the day-to-day administration of employee benefit plans and counsel them on plan design and interactions with government agencies.
We have specialized experience in ERISA’s fiduciary requirements. We assist plan trustees and other fund fiduciaries with the preparation of investment guidelines, negotiate and obtain prohibited transaction exemptions from the Department of Labor (DOL), identify plan assets, advise plan fiduciaries regarding reporting, disclosure and general compliance matters and conduct compliance reviews and training and educational programs for plan trustees and other fiduciaries. We also represent plan fiduciaries in connection with investigations by DOL and the Internal Revenue Service (IRS). We routinely provide ERISA fiduciary advice in connection with plan investment vehicles – advising plan trustees and other fund fiduciaries regarding the favorable restructuring of fund custody and securities lending agreements with many of the world’s major financial institutions.
Our team reviews and negotiates the business and legal terms of numerous types of investment vehicles, including leveraged buyout funds, venture capital funds, distressed debt funds, real estate funds, mezzanine debt funds, hedge funds, funds of finds and funds focused on the secondary market. We regularly provide fiduciary counsel to our U.S. and international institutional investor clients with respect to both U.S. and offshore private fund investments, in amounts ranging from $10 million to several hundred million dollars. We work with our institutional investor clients’ external asset managers where appropriate to provide seamless legal and fiduciary support.
Selective services provided by the practice include:
- Design and drafting of all types of employee benefit plans.
- Analysis of fiduciary obligations under ERISA and parallel state laws, including a specific focus on the application of the prudence, conflicts of interest, prohibited transaction and plan asset rules.
- Assessment and advice regarding tax qualification rules and other legal requirements applicable to retirement plans, including the rules governing the taxation of unrelated business taxable income.
- Advice regarding 409A compliance for employment, severance, bonus, change in control and option agreements and other types of nonqualified deferred compensation plans.
- Counsel plan trustees and other fund fiduciaries of institutional investor clients with respect to state, federal and international compliance and governance issues.
- Counsel plan trustees and other fund fiduciaries on solutions to funding issues, including the problems associated with underfunded and overfunded retirement plans, retiree health plans and nonqualified agreements.
- Advise on employee benefit issues in corporate mergers and acquisitions, bankruptcy and real estate investments.
- Strategic assistance with DOL examinations and investigations, IRS audits and voluntary correction programs.
- Contract advice with respect to investment managers, custodians, plan record-keepers, third-party administrators, managed care providers and other plan service providers.
- Compliance with state and federal laws and regulations, including COBRA and HIPAA, applicable to group health plans.
Representative Matters
- Successfully navigated complex executive compensation, 401(k) Plan, ESOP, nonqualified deferred compensation and health and welfare plan and related SEC issues for distressed financial services holding company that experience a change in management, bankruptcy and the sale of assets of its wholly-owned subsidiary.
- Counseled a large energy industry company being spun off from its parent on the establishment and implementation of all of its new stand-alone benefit plans and programs, including negotiating the related administrative services agreements, insurance contracts and pension plan investment advisory agreements.
- Devised programs and strategies to enable a large health care entity to comply with all aspects of its HIPAA obligations.
- Represented a major national financial institution in connection with control group liability issues relating to pension plans subject to termination by the Pension Benefit Guaranty Corporation.
- Prepared complex prohibited transaction exemption applications filed with DOL on behalf of a family of multiemployer plans.
- Wrote report analyzing the fiduciary liability exposure of government retirement plans, including compilation of state indemnification laws.
- Assisted a multinational employer in developing and executing a legislative strategy to improve 401(k) plan fee disclosure rules.
- Assisted a large employer in the restructuring of its health care delivery system.
- Advised numerous employers on compliance obligations regarding all facets of the nonqualified deferred compensation provisions contained in Internal Revenue Code Section 409A.
- Advised numerous publicly-traded financial institutions on the establishment of new equity-based compensation programs in consideration of the changing accounting environment affecting these programs.
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