Overview

In the face of the growing complexity and heightened scrutiny surrounding executive compensation arrangements and employee benefits plans and their assets, our Employee Benefits, Executive Compensation & ERISA Litigation Practice Center is at the forefront, addressing the unfolding legal and business developments impacting these arrangements and plans and formulating innovative, practical and proactive legal strategies.

The depth of our group, both in number of lawyers and years of experience, enables our legal work to be accomplished by experienced professionals at the appropriate level while controlling costs and minimizing response time. This ability to provide prompt, high-quality advice to our clients and communicate even the most technical and complex legal concepts in an intelligible and pragmatic manner is a hallmark of our practice.

Unique among employee benefits practices at major law firms in the United States – and, indeed, the world – our Practice Center integrates the extensive resources of Proskauer’s employee benefits, ERISA, executive compensation, public and private investment funds, tax and litigation lawyers. Our assistance allows our clients to manage their benefit plans and investments in a prudent manner, while avoiding costly – and embarrassing – multibillion dollar, lengthy litigations, government agency audits and investigations and scrutiny by the media and other outside parties.

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, multi-employer and collectively bargained pension plans, welfare benefit and other plans, covering, in total, well 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, broad-based severance, legal, training, cafeteria, VEBA and other health and welfare and fringe benefit plans.

We also provide extensive advice to public and private companies concerning executive compensation matters, including equity-based compensation, bonus arrangements, supplemental retirement and deferred compensation plans, executive employment and severance arrangements, and securities law compliance. In this context, we counsel clients on the tax, ERISA, corporate securities, stock exchange, employment law and accounting issues impacting executive compensation planning. In addition, we advise employers and senior executives in the negotiation and implementation of employment agreements, including provisions dealing with post-employment restrictions. We have been involved in some of the most publicized executive compensation arrangements and have broad experience in advising a full spectrum of different kinds of entities, from Fortune 100 to start-ups, biotech and high-tech, to traditional Wall Street entities, to private equity and hedge funds.

The work we do for our clients also includes issues involving U.S. governmental agencies such as the IRS, Department of Labor, Pension Benefit Guaranty Corporation, DOJ, Centers for Medicare and Medicaid Services and the SEC. We also frequently advise clients in connection with various “correction” and “amnesty” programs sponsored by the IRS and Department of Labor.

In addition, we are active 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 recoveries for our benefits clients while averting unnecessary litigation costs. We also assist clients in interpreting and enforcing fiduciary liability insurance and fidelity bond policies and negotiating complex settlements with insurance carriers. We have established an excellent reputation among the various governmental agencies, which enhances our ability to forestall or resolve contemplated litigation against our clients.

Given the substantial asset bases and participant populations of the plans that we represent, we frequently counsel clients – in conjunction with our corporate, securities, banking, real estate and bankruptcy groups – on the fiduciary, unrelated business taxable income consequences and other legal aspects of plan investments. Many of these clients have extensive interests in various forms of alternative investments, including real estate, general and limited partnerships, limited liability companies, venture capital, real estate investment trusts, private equity and hedge funds, and funds of funds. We negotiate and draft all necessary agreements in connection with such investments, as well as with banks, trustees, custodians, investment managers, insurance companies, third-party administrators and other service providers. 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.

We are recognized for maintaining one of the largest and most prominent practices of its type and are one of the very few “go-to” groups for benefits, compensation and ERISA litigation matters, with Chambers USA calling us a “juggernaut” in the ERISA world. In addition, Chambers USA has said: “Clients praise this large and talented group for its deep and broad expertise in all aspects of employee benefits and executive compensation law.” In 2011 Proskauer was recommended by Chambers USA for our nationwide client service, along with just four other firms. Our partners are ranked in the top tiers of Chambers USA and U.S. Legal 500, where they are noted for their “excellent work on executive compensation matters,” having “great breadth of knowledge,” and their adeptness at “handling complex situations where competing viewpoints need reconciling.” Two team members were noted, respectively, as “arguably the best-known ERISA litigator in the country” and an “ERISA god.” Our lawyers also have been recognized by The National Law Journal, Human Resource Executive Magazine, The American Lawyer, Super Lawyers and Best Lawyers, among others, as the top employment and benefits practitioners in the country.

Areas of Focus

• Single Employer Corporate Retirement Plans
• Multi-Employer Retirement Plans
• Executive Compensation
• Business Transactions
• Public and Private Plan Investment Funds and Fiduciary Investment Issues
• ERISA Litigation
• Health and Welfare Plans
• Benefits for Tax Exempt Institutions
  

Key Representations

• The Westin Diplomat Resort and Spa in Hollywood, FL, one of the largest hotel projects in the country. This complex representation involved an investment approaching $800 million in pension plan assets and encompassed virtually every aspect of ERISA and implicated numerous IRS issues, in addition to a host of labor and employment law issues. A team of Proskauer lawyers – including members of our banking, environmental, ERISA, lodging and gaming, litigation, real estate and tax groups – assisted our Practice Center and Labor & Employment Law Department in bringing this project to a conclusion and negotiating a hotel management agreement under which the entire facility is being operated.
• Management in connection with their joint venture and purchase of Neuberger Berman from Lehman Brothers
• Sanjay Jha in his appointment as Co-Chief Executive Officer of Motorola
• Wachovia Corporation, its Board of Directors and the fiduciaries of the Wachovia National Corporation Savings Plan in an ERISA litigation arising from the subprime crisis
• The New York Times Company in connection with various high-level issues related to its benefits and compensation program, including addressing pension funding issues, disputes with employees in regard to their benefits, establishment of various provider arrangements and Section 409A issues

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