Employee Benefits & ERISA

We build sophisticated plans to work in the real world

A benefit plan must satisfy demanding legal and tax rules while still advancing the employer’s business and workforce goals. We design, draft, implement, administer, amend and terminate plans with careful attention to how they will operate day to day. Our lawyers include practitioners with advanced tax degrees and decades of experience with qualified and nonqualified plans, health and welfare benefits, and executive compensation.

Our work includes:

• Retirement and ownership plans, including 401(k), 403(b), defined benefit and cash balance plans, pensions and pension investments, profit-sharing plans, Employee Stock Ownership Plans (ESOPs), governmental plans and tax-sheltered annuities
• Health and welfare benefits, including medical, dental, vision, life, disability, accidental death and dismemberment, dependent care, wellness and employee assistance programs
• Group health plans, voluntary employees’ beneficiary associations (VEBAs), voluntary welfare benefits, health reimbursement arrangements (HRAs), health savings accounts (HSAs), flexible spending accounts (FSAs), medical expense reimbursement plans (MERPs), cafeteria plans and other fringe benefit arrangements
• Equity and incentive compensation, stock options, nonqualified deferred compensation under Section 409A, employment agreements and severance arrangements
• Plan qualification, vesting and benefit termination, as well as plan mergers and plan-to-plan transfers
• We also advise on the Affordable Care Act (ACA), HIPAA, COBRA, and Medicare requirements that govern health plans.

For union-sponsored plans, we counsel employee organizations and contributing employers on ERISA obligations that arise through collective bargaining and ongoing plan administration.

We correct plan failures before they compound

Compliance with ERISA and the tax code is easy to get wrong, even when an employer is acting in good faith. Clients call us when they want to establish a plan, when an operational or document failure surfaces, or when another adviser has left a problem behind. We treat acute issues like triage: contain the immediate exposure, determine what failed, and engineer a durable correction.

Our compliance work covers:

• Plan document and operational failures, remedial amendment periods, self-correction, voluntary compliance and the IRS Employee Plans Compliance Resolution System (EPCRS)
• Advice on fiduciary obligations, reporting and disclosure, plan interpretation and administration, tax structuring and the tax implications of benefit decisions
• Representation of clients in audits, investigations and hearings before the U.S. Department of Labor, Internal Revenue Service, Pension Benefit Guaranty Corporation and state and local taxing authorities.

We protect the deal from benefits risk

Employee benefit liabilities can affect purchase price, deal structure and the value a buyer believes it is acquiring. We identify and address benefit and compensation issues in mergers, acquisitions, strategic alliances and divestitures, including plan diligence, correction, continuation, merger, transfer or termination. We also advise private equity funds on ERISA’s plan asset regulations and counsel clients on benefit matters arising in bankruptcies, restructurings and reorganizations.

ESOP transactions demand particular caution. An ESOP can support a leveraged buyout, create employee ownership and align retirement value with company performance, but mistakes in design, operation or termination can create significant collateral consequences. Whether a client is considering an ESOP, already sponsors one or needs to repair a plan established by someone else, we bring the careful analysis needed to protect the company, the plan and its fiduciaries.

When plan disputes turn into litigation, we are ready

Our Employee Benefits and ERISA litigators represent employers, plan administrators, and plan fiduciaries in mediation, arbitration, litigation and administrative proceedings. We handle individual participant and beneficiary claims as well as multiparty, multidistrict and class action matters involving:

• Plan interpretation, administration and modification, qualification, vesting and termination
• Benefits and coverage disputes, continued medical coverage under COBRA and state statutes and penalties for failures to provide required information or notice
• Fiduciary obligations and alleged breaches, including the expanding wave of class actions challenging the fees, investments and administration of 401(k) and other plans
• Payment practices, including medical provider subrogation and reimbursement
• ERISA, Federal Employees Health Benefits Act (FEHBA), Federal Employees’ Group Life Insurance Act (FEGLIA) and Medicare preemption of state law, including tort, punitive damages and RICO claims
• Exhaustion of ERISA and Medicare remedies and benefit issues arising in bankruptcy and insolvency proceedings

Because plaintiffs’ theories continue to expand beyond traditional 401(k) litigation, we brief clients on emerging claims and recommend preventive measures before a dispute takes shape. When litigation cannot be avoided, our command of the governing statutes, regulatory guidance, and case law allows us to defend both the legal position and the business decision behind it.