The Employee Benefits and Executive
Compensation Law Practice Group at Proskauer Rose LLP counsels clients on the full spectrum of benefit and compensation issues, communicating technical and complex legal concepts in an intelligible, pragmatic manner. For more information about this practice area, contact:
Overview
Proskauer Rose LLP's nationally recognized Employee Benefits and Executive Compensation Law Group includes nearly 60 attorneys, and several other professionals, whose range of skills covers the entire spectrum of employee benefits and executive compensation law. The depth of this Group (in both numbers of lawyers and years of experience) enables legal work to be accomplished by experienced professionals at the appropriate level, while controlling legal costs and minimizing response time.
Liabilities for pension and welfare benefits have escalated dramatically during the past few years, as have the regulatory requirements applying to these arrangements. This has prompted our clients to pay careful attention to their benefits programs. We take pride in our ability to provide prompt, high-quality advice to our clients and to communicate even the most technical and complex legal concepts in an intelligible and pragmatic manner.
Benefits Clientele
Our benefits clientele include many of the most prominent local, national and international businesses, as well as public employers, cultural and philanthropic institutions and other not-for-profit entities and public-interest groups. We represent hundreds of single-employer, multiemployer and collectively bargained pension plans, welfare benefit and other plans (covering, in total, over one million participants, with collective asset bases exceeding $100 billion). These include pension, profit-sharing, annuity, 401(k), employee stock ownership, stock bonus, stock option, phantom stock, tax-sheltered annuity and thrift plans, as well as various group life insurance, medical, hospitalization, dental, optical, vacation, severance, legal, training, cafeteria, VEBA and other "health-and-welfare" and fringe benefit plans.
The Benefits Group provides extensive advice to employers concerning executive compensation, golden parachute and deferred compensation plans. In this context, we counsel clients on employment agreements, incentive compensation, early retirement window programs and a variety of supplemental retirement plans (advising on federal, state and international tax planning, as well as ERISA implications).
We also represent a large number of tax-exempt employers and have gained extensive experience with all issues involving application of the benefit and compensation laws to the tax-exempt entity arena. Our experience includes issues relating to Internal Revenue Code Section 403(b) arrangements, and application of the special rules under Internal Revenue Code Section 457(f) to deferred compensation arrangements.
General Practice Areas
We are regularly called upon to advise executives, trustees, administrators, boards of directors, and other plan fiduciaries and professionals on a wide variety of ERISA and tax issues. These include questions regarding reporting and disclosure, participation, vesting, funding, benefit accrual, fiduciary responsibility, prohibited transactions, plan termination, asset reversion, merger, employer withdrawal liability, the Age Discrimination in Employment Act, the Americans With Disabilities Act, COBRA, the Family and Medical Leave Act, the Health Insurance Portability and Accountability Act, various IRS correctional programs, bankruptcy, discrimination, federal and state agency enforcement, securities, and other laws. We represent our benefit clients in connection with issues involving the Internal Revenue Service, the United States Department of Labor, the Pension Benefit Guaranty Corporation, the U.S. Department of Justice, the Health Care Financing Administration, and the Securities and Exchange Commission (particularly with respect to audits, investigations, lawsuits and other proceedings initiated by such agencies).
Team Approach
Our Employee Benefits and Executive Compensation Law Practice Group has developed a "team" approach to address specific benefits issues, particularly in the mergers and acquisitions and litigation areas. Clients often seek our skills in connection with purchases, sales, mergers, employee downsizings and other reductions-in-force, leveraged buy-outs and other forms of business acquisitions (and related lending transactions), as well as with respect to employee benefit plan mergers, spin-offs and asset transfers (including the establishment of a leveraged ESOP as a corporate acquisition device and financing tool). We analyze the cost and other implications of such transactions, perform the necessary due diligence, and draft appropriate documents to protect our clients' interests, as well as to deal with the treatment of stock options and employer stock in various plans.
ERISA Litigation and Other Forms of Dispute Resolution
Several Proskauer lawyers are highly experienced in handling all forms of ERISA litigation, arbitration and mediation, including individual and class action lawsuits alleging breaches of ERISA's fiduciary duty and prohibited transaction provisions; challenges to plan denials of claims for benefits; actions challenging particular investment decisions; delinquent employer contribution and collection claims, and withdrawal liability matters arising under multiemployer plans; Pension Benefit Guaranty Corporation proceedings; United States Department of Justice and Labor investigations and lawsuits; and Tax Court inquiries.
We have been active both in prosecuting and defending a wide variety of fiduciary duty claims on behalf of employee benefit plans, plan trustees and plan service providers, including claims arising from significant plan investment losses, claims challenging plan amendments or terminations, and claims challenging plan restrictions on particular types of coverage. In many of these cases, we have been instrumental in fashioning imaginative and practical settlements that have yielded significant multi-million dollar recoveries for our benefit clients, while averting unnecessary litigation costs. We also assist clients in interpreting and enforcing fiduciary liability insurance policies and negotiating complex settlements with insurance carriers. We have also established an excellent reputation among the various governmental agencies, which enhances our ability to forestall or resolve contemplated litigation against our clients.
In the employee benefits field, we have been active in both litigating and resolving claims in cutting edge areas of the law, including multi-plaintiff and class action claims for retiree benefits; and claims challenging unique restrictions on benefit coverage, such as AIDS, autism, mental and nervous disorders, organ transplants, etc. Our zealousness in representing plans and their fiduciaries in these lawsuits has been matched by our creativity in resolving them.
"Troubled" Plans
As a result of its preeminent position in the field, our Benefits Group has been called upon to serve as legal counsel to a number of "troubled" multiemployer benefit plans which, prior to our involvement, were subject to organized crime (or other nefarious) influences, several of which have been the subject of investigations, trusteeships or monitorships conducted by governmental authorities or international unions. In this role, we have assisted court appointed monitors and newly appointed fiduciaries of these funds in restoring them to good health by means of coordinated litigation strategies. We also have had extensive experience with various Internal Revenue Service correction programs (such as APRSC, VCR, TVC and the general closing agreement program).
Plan Investments
Given the substantial asset bases and participant populations of the plans that we represent, we frequently counsel clients on the fiduciary, unrelated business taxable income consequences, and other legal aspects of plan investments (working closely with our corporate, securities, banking, real estate and bankruptcy groups).
Many of the plans that we represent have extensive interests in various forms of real estate, mortgages, mortgage-backed securities, limited partnerships, venture capital, real estate investment trusts and other alternative investment programs, as well as in more typical trust investments. Several of these plans are involved in unique positions (e.g., the building and operation of office buildings, shopping centers, and other businesses).
We negotiate and draft agreements in connection with such investments, as well as with banks, trustees, custodians, investment managers, insurance companies, third party administrators and other service providers (including investment management agreements; investment guidelines, policies and objectives; custodial and group trust documents; insurance company annuity and guaranteed investment contracts; limited partnership documents; and various other plan investment, funding and financing arrangements). We also regularly advise clients on complex legal issues relating to global custody of plan assets, securities lending arrangements, "soft-dollar" brokerage arrangements and commission recapture programs, as well as fiduciary liability, directors and officers, and other types of insurance policies.
Executive Compensation
The Firm's executive compensation practice involves all aspects of compensation and benefits for senior executives and other management employees. The group is involved with all types of equity arrangements, such as stock option, restricted stock, stock purchase and phantom stock plans and arrangements, as well as use of stock in qualified plans and other types of incentive arrangements. In addition to drafting and assuring legal compliance of the plans, we also assist in the design of the arrangements in accordance with industry practices and alert clients to potential accounting issues depending on the design of the arrangements. We also handle all types of non-equity executive compensation arrangements, including supplemental executive retirement plans, deferred compensation arrangements, rabbi trusts, and cash incentive plans.
The Benefits Group not only addresses the tax aspects of these arrangements, but also deals with the securities, stock exchange, corporate and ERISA requirements for the arrangements and drafts the necessary disclosure documents.
The Benefit Group is also very involved with the aspects of corporate transactions. We also represent senior executives and companies in connection with employment agreements, severance agreements and related matters. Because of the equity involved, it is not unusual for these contracts to involve eight to nine figures in value. The companies involved run the gamut from the Fortune 500 to venture capital firms to leveraged buyouts situations to those in corporate restructuring (and cover a vast assortment of industries).
For a more complete description of the Firm's Executive Compensation Practice, click here.
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