Proskauer Benefits Brief: Legal Insight on Employee Benefits & Executive Compensation

In this episode of The Proskauer Benefits Brief, David Teigman, partner in the Tax Department and a member of the Employee Benefits & Executive Compensation Group, Josh Apfelroth, partner in the Private Equity and Mergers & Acquisitions Group and Nick LaSpina, senior counsel in the Employee Benefits and Executive Compensation Group discuss shareholder activism in the public company context and more specifically within the framework of executive compensation. Because executive compensation can be a hot‑button topic for shareholders and can be implicated in a variety of activist situations, be sure to tune in for the latest insights into these matters.

In this episode of The Proskauer Benefits Brief, David Teigman, partner in the Employee Benefits and Executive Compensation Group, Simon Sharpe, partner and member of our Private Equity and Mergers & Acquisitions groups and Nick LaSpina, senior counsel in the Employee Benefits and Executive Compensation Group discuss rep and warranty insurance (RWI) in the mergers and acquisitions context. They also focus on certain aspects of this insurance product as it relates to executive compensation and employee benefits matters. For the last 10 years, we have only seen the use of this insurance product proliferate, so be sure to tune in as these issues will continue to be highly relevant in any transactional practice.

In this episode of The Proskauer Benefits Brief, Proskauer partners Ira Bogner and Adam Scoll and law clerk Tanusha Yarlagadda discuss the Department of Labor's final ESG rules issued on November 22, 2022, and how those rules affect the consideration by ERISA fiduciaries of environmental, social, and governance or “ESG” factors when making investment decisions and exercising shareholder rights, such as voting proxies.  Although these final rules generally became effective on January 30, 2023, they are currently being challenged both in the courts and in Congress.

In this episode of The Proskauer Benefits Brief, partner David Teigman, senior counsel Nick LaSpina, and special international labor & employment counsel Nicola Bartholomew, discuss differences between asset sales in the US and the UK, with respect to transfers of employees.  In short, there are significant differences that are not necessarily intuitive to US practitioners.  In the US, parties will have commercial freedom to make offers of employment and negotiate terms, whereas in the UK employees will transfer automatically as a result of TUPE and a number of significant protections and obligations apply that will need to be factored into the deal. So be sure to tune into this informative discussion about employment and benefits issues in asset sales in the US and the UK. 

In this episode of The Proskauer Benefits Brief, Proskauer partner David Teigman, senior counsel Nick LaSpina, and special guest Michelle Garrett, a principal at the compensation consulting firm Semler Brossy, discuss employee retention. It seems like there is an article almost every day talking about the “great resignation.”  In a nutshell, there have been far more job transitions recently than there have been in the past. Tune in as we discuss what employers can do to help retain employees in this working environment.

In this episode of The Proskauer Benefits Brief, Myron D. Rumeld, partner and co-chair of Proskauer's ERISA Litigation group and senior associate Tulio D. Chirinos, review the current state of affairs with respect to the litigation challenging the fees charged and investments offered in defined contribution plans; and The Supreme Court's recent decision in Hughes v. Northwestern University where the court reversed and remanded the Seventh Circuit's decision affirming dismissal of a 403(b) plan excessive fee litigation.

This episode is the final installment of our three-part series on a new special financial assistance program created by the American Rescue Plan Act of 2021 for troubled multiemployer plans and the interim guidance issued by the Pension Benefit Guaranty Corporation regarding the program. Be sure to listen as Rob Projansky and Justin Alex cover the special rules that apply to plans that receive the assistance and other details including how the program impacts withdrawal liability for employers.

This episode of The Proskauer Benefits Brief is the second of our three-part series analyzing the Pension Benefit Guaranty Corporation (PBGC) guidance on the new special financial assistance program for troubled multiemployer pension plans that was created by the American Rescue Plan Act (ARPA).  Tune in as Rob Projansky and Justin Alex dig into more details on the guidance and the program.

This episode of The Proskauer Benefits Brief is the first of our three-part series analyzing the Pension Benefit Guaranty Corporation (PBGC) guidance on the new special financial assistance program for troubled multiemployer pension plans that was created by the American Rescue Plan Act (ARPA).  In this initial episode, partner Rob Projansky and senior counsel Justin Alex cover the basic contours of the program.

In this episode of the Proskauer Benefits Brief, partner Robert Projansky and special guest Garrett Fenton, senior attorney at Microsoft Corporation, discuss cyber theft of 401(k) plan accounts.  Tune in as we discuss why 401(k) plans are vulnerable to cyber security breaches, what kinds of cyber security frauds we are seeing in 401(k) plans, evolving litigation on these issues and steps plan sponsors can take to mitigate risk.

For a number of ERISA, tax and other regulatory reasons, it may be desirable for the manager or sponsor of an investment fund or other structure to utilize what is often referred to as a plan asset "hard-wired" conduit feeder.  Tune in to this podcast as partner Ira Bogner and senior counsel Adam Scoll discuss more about these structures, and the advantages they can provide.   

In this episode of the Proskauer Benefits Brief, partner Ira Bogner and senior counsel Adam Scoll discuss VCOC "Management Rights."  For VCOC compliance purposes, "management rights" are contractual rights directly between an investing entity and an operating company by which the investing entity can substantially participate in, or substantially influence the conduct of, the management of the operating company.  Unfortunately, there is not a ton of guidance out there explaining what constitutes sufficient VCOC "management rights," so make sure to tune in to this podcast to hear our views.    

In this episode of the Proskauer Benefits Brief, partner Ira Bogner and senior counsel Adam Scoll discuss when and how an ERISA plan fiduciary may consider “ESG factors,” (i.e., environmental, social and governance factors) when investing ERISA plan assets.  As these circumstances are fairly limited, we advise ERISA plan fiduciaries to proceed with caution in this regard.  Tune in for more important information in this episode.

In this episode of the Proskauer Benefits Brief, partner Ira Bogner and senior counsel Adam Scoll discuss ERISA’s bonding requirements. ERISA’s bonding rules generally require that every fiduciary of an ERISA-covered employee benefit plan and every person who handles funds or other property of such a plan be bonded. We will break down these bonding rules and their importance, so be sure to tune in to this episode.

Over a year after the CA Supreme Court set new standards for worker classification in its Dynamex ruling, employers with workers in California are faced with often conflicting information about this decision’s practical impact.  In this episode of The Proskauer Benefits Brief, Kate Napalkova, special employee benefits and executive compensation counsel, and associate Pietro Deserio discuss Dynamex and its broader meaning for employers and other stakeholders, both in the compliance and transaction arenas.

In this episode of The Proskauer Benefits Brief, our final installment in the series exploring the basic COBRA rules, partner Paul Hamburger is joined by associate Katrina McCann and they discuss the penalties for noncompliance. Employers and plan administrators often ask what types of penalties they are exposed to if they get it wrong. What is the cost in correcting the COBRA error? We discuss these important issues so be sure to tune in.

In this episode of The Proskauer Benefits Brief, our series on the COBRA basics rolls on. Partner Paul Hamburger is joined by associate Talya Scolnik and they discuss some of the key COBRA considerations for some of the nontraditional health plan related programs such as Employee Assistance Programs (EAPs) and Health Wellness Programs, Flexible Spending Accounts (FSAs) and Health Reimbursement Arrangements (HRAs).

In this episode of The Proskauer Benefits Brief, partner Paul Hamburger and associate Tyler Forni highlight some of the key COBRA rules to keep in mind in Mergers and Acquisition context. Most people understand that in any M&A interaction, COBRA rules need to be addressed, so be sure to tune in to the next episode in this COBRA series.

In this episode of The Proskauer Benefits Brief, our series outlining the basic COBRA rules continues. Partner Paul Hamburger and associate Talya Scolnik highlight some of the key COBRA rules to keep in mind in understand how long COBRA coverage lasts. This can be a complicated and very technical issue, so be sure to tune in.

In this episode of The Proskauer Benefits Brief, partner Paul Hamburger joins Jennifer Rigterink to talk about some of the tricky points related to COBRA premium payment rules. In this installment of our series on COBRA rules, they highlight what plan administrators need to consider when facing COBRA premium payment issues.

In this episode of The Proskauer Benefits Brief, partner Paul Hamburger is joined once again by associate Gabrielle Fox as they discuss important rules and practical issues that arise in dealing with COBRA’s election rules. They will provide insight on important questions related to COBRA election rules such as when elections have to be made, who can make the elections, and what happens to coverage during the COBRA election period.

In this episode of The Proskauer Benefits Brief, partner Paul Hamburger talks with associate Gabrielle Fox about some of the important considerations in dealing with notice rules for COBRA purposes. In this edition of our COBRA series, we will explain how notices are a key to COBRA administration. They trigger rights for qualified beneficiaries and obligations for plans and plan administrators, so be sure to tune in.

In this episode of The Proskauer Benefits Brief, partner Paul Hamburger is joined by associate Talya Scolnik to explore some of the important considerations in identifying qualifying events for COBRA purposes. This is a little more complicated than just listing the qualifying events, so be sure to tune in for important information on this topic.

In this episode of The Proskauer Benefits Brief, we continue our series on the basics of COBRA. Partner Paul Hamburger and associate Caroline Cima discuss some of the important considerations in identifying who are qualified beneficiaries for COBRA purposes.

In this episode of The Proskauer Benefits Brief, we begin our series outlining the basic COBRA rules and understand the facts and fiction surrounding COBRA coverage rules. In this kickoff episode, partner Paul Hamburger and associate Tyler Forni highlight basic COBRA terms and definitions. They also identify the group plans that are subject to COBRA. So be sure to tune in for some important information on COBRA rules as related to group plans.

In this episode of The Proskauer Brief, Kate Napalkova, special employee benefits and executive compensation counsel, and associate Oleg Zakatov discuss potential pitfalls that lurk in employment agreements and other employee compensation arrangements. Specifically, they will focus on key contractual provisions that employers should incorporate into any document that includes a confidentiality covenant. Employers should be sure to tune in to see why involving your in-house team and outside executive compensation and employment counsel to regularly audit employment agreements, employee handbooks, independent confidentiality and IP assignment agreements, and other company policies is always a good idea.

In this episode of the Proskauer Benefits Brief, partner Ira Bogner and senior counsel Adam Scoll provide an overview of the plan assets exceptions for private investment funds, and discuss why such plan assets exceptions matter to private investment fund managers that might want to accept investments from ERISA-covered plans. Given that compliance with a plan assets exception may prove to be quite complex, they highly recommend that private investment fund managers consult with experienced ERISA legal counsel during all phases of their fund formation and fundraise, and Proskauer is always here to help in that regard. Be sure to tune in to this episode.

In this episode of the Proskauer Benefits Brief, partner Rob Projansky and associate Jennifer Rigterink follow up on a previous Benefits Brief episode on Cybersecurity and Employee Benefit Plans by discussing the risks associated with cyber theft of 401k plans. Cyber theft in 401k plans usually happens when a hacker has a person’s credentials and is able to access their plan account through e-mail phishing, or malware/spyware. They are likely to steal social security numbers and other personal information as well. We’ll discuss some of the risks and remedies associated with cyber theft of these 401k plans, so be sure to tune in to this episode.

In this episode of the Proskauer Benefits Brief, partner Paul Hamburger, and associate Katrina McCann discuss the suspension of benefits rules, and the unique and interesting issues that arise when defined benefit plan participants work beyond their normal retirement age.  Plan sponsors and administrators should tune in, as these rules are quite complicated and are often misunderstood.

In this episode of the Proskauer Benefits Brief, Paul Hamburger, co-chair of Proskauer’s Employee Benefits & Executive Compensation Group, and associate Joe Clark discuss how the attorney-client privilege rules apply in an employee benefit plan context. The attorney-client privilege allows for the free flow of information between an attorney and a client in order to insure that the client gets the best possible representation. We discuss the various specific rules that apply in the employee benefit plan context where information is often shared between attorneys and plan fiduciaries. Be sure to tune in for the latest insight on this significant issue and visit Proskauer’s Employee Benefits and Executive Compensation Blog for more information.

In this episode of The Proskauer Benefits Brief, partner Ira Bogner and senior counsel Adam Scoll discuss the key considerations for ERISA plan fiduciaries when delegating investment authority over plan assets.  We will break down some of the material ERISA issues that may apply when an ERISA plan hires a separate account investment manager or invests in a private investment deemed to be holding ERISA plan assets.

In this episode of the Proskauer Benefits Brief, Paul Hamburger, co-chair of Proskauer’s Employee Benefits & Executive Compensation Group, and associate Steven Einhorn discuss the recently proposed IRS regulations addressing the hardship withdrawal rules affecting 401(k) and 403(b) plans.  We will discuss challenging questions employers and administrators face as they work through the new requirements, which include the elimination of the six-month contribution suspension for participants who take a hardship withdrawal and how many plans will need to be amended as a result of these new proposed regulations. Be sure to tune in for the latest insight on this very important issue and visit Proskauer’s Employee Benefits and Executive Compensation Blog for more information.

In this episode of the Proskauer Benefits Brief, partner Robert Projansky and associate Katrina McCann discuss the recent district court case, Texas et al. v. The United States of America, which declared the Affordable Care Act (ACA) unconstitutional. On December 14, 2018, a district court judge in the Northern District of Texas deemed the entirety of the Affordable Care Act invalid because he found the individual mandate to be unconstitutional. From what would happen to the employer mandate to emergency care coverage, tune in as we discuss what these changes could mean for employers and plan sponsors if the court’s decision is ultimately upheld.

In this episode of The Proskauer Benefits Brief, partner Ira Bogner and senior counsel Adam Scoll discuss the key considerations for ERISA investors in private investment funds, as well as a plan fiduciary’s overarching fiduciary duties and responsibilities that are related thereto. One of the first key considerations is to determine the plan asset status of the private investment fund. Tune in and listen as we break down the material ERISA issues for ERISA investors to consider when investing in private investment funds.

In the final episode of a seven-part series for The Proskauer Benefits Brief, partners Michael Album and Josh Miller talk about employment agreements in the context of a management buyout. They go over the key terms and issues that management should focus on when reviewing and negotiating their go-forward employment arrangements, compensation structure, severance protection and restrictive covenants with the buyer following the sale. Tune in and listen for the latest insights on management buyouts.

In this episode of The Proskauer Benefits Brief, partners Michael Album and Josh Miller discuss the incentive equity package that management will be offered in the buyout, including the structure of the incentive pool, vesting, and favorable tax treatment of incentive grants. Tune in and listen for the latest insights and perspective on management buyouts in this sixth of a seven part series.

In this episode of The Proskauer Benefits Brief, partners Michael Album and Josh Miller are back to continue their discussion of the rights that management gets when it “rolls” old equity into new equity in the buyout vehicle and then introduce incentive equity awards for management. Be sure to tune in and listen for the latest on management buyouts in this fifth of a seven part series.

In this episode of The Proskauer Benefits Brief, partners Michael Album and Josh Miller return to discuss how management can use a “template” to have a bidder identify the way compensation issues will be addressed in an MBO.  They also discuss the “rollover” by management of their equity in an MBO. Be sure to tune in and listen for the latest insights and perspective on management buyouts in this fourth of a seven part series.

In this episode of The Proskauer Benefits Brief, partners Michael Album and Josh Miller return to discuss the nuts and bolts of a management buyout, and in particular, how management deals with the selling sponsor and the bidder, and starts to develop their own compensation packages post-closing and consider deal bonuses from the selling sponsor. Be sure to tune in and listen for the latest insights and perspective on management buyouts in this third of a seven part series.

In this episode of The Proskauer Benefits Brief, partners Michael Album and Josh Miller return to discuss the nuts and bolts of a management buyout. As part of their discussion they highlight the different types of transactions (single bidder vs. multi-bidder) and the various tasks that management faces in handling the process and as a first step inventorying their own compensation arrangements. Be sure to tune in and listen for the latest insights and perspective on management buyouts in this second of a seven part series.

In this episode of The Proskauer Benefits Brief, partners Michael Album and Josh Miller discuss the nuts and bolts of a management buyout, and in particular, the issues and strategies that management needs to know. They examine the structure of a management buyout and discuss in detail the process behind the buy-out and how it unfolds for management. Be sure to tune in and listen for the latest insights and perspective on management buyouts in this first of a seven part series.

In this episode of the Proskauer Benefits Brief, partner Myron D. Rumeld and associate Joseph Clark discuss participant-directed defined contribution (DC) plans and the lawsuits against the fiduciaries and service providers which are responsible for administering them. We will examine the best practices that can achieve favorable results for plan participants and the practices that can avert litigation or enable plan fiduciaries to effectively defend themselves if there is litigation. With the proliferation of DC lawsuits in recent years, be sure to tune in for this very important issue impacting plan sponsors and fiduciaries.

In this episode of the Proskauer Benefits Brief, Paul Hamburger, co-chair of Proskauer’s Employee Benefits & Executive Compensation Group, and partner Robert Projansky discuss ten basic steps for how to manage qualified domestic relations orders (QDROs). A QDRO is a judgment, decree or order for a retirement plan to pay child support, alimony or marital property rights to a spouse, former spouse, child or other dependent of a participant. Many of our clients and plan administrators spend a significant amount of time on QDROs. Tune in and listen to how we make it easier for them to handle QDRO issues and administration.

In this episode of the Proskauer Benefits Brief, Paul Hamburger, co-chair of Proskauer’s Employee Benefits & Executive Compensation Group, and associate Katrina McCann discuss how to fix retirement plan overpayments, based on (1) the type of plan (i.e., defined contribution or defined benefit plan), (2) whether the overpayment was with respect to a lump sum or ongoing payments, (3) the type of overpayment (whether it was to the wrong person or paid at the wrong time), and (4) who caused the overpayment.  They discuss the requirements, the decisions involved, and certain ERISA and taxation issues that can arise when addressing these overpayments.

In this episode of the Proskauer Benefits Brief, partner Neal Schelberg and associate Miriam Dubin discuss cybersecurity issues impacting employee benefit plans. Data breaches are occurring with increased frequency in today’s digital environment. Benefit plans in particular are uniquely susceptible to cyber-risks because they store large amounts of sensitive employee information and share it with multiple third parties.  In this episode, we discuss the developing legal framework in the area of cybersecurity and outline practical tips that plan sponsors and record-keepers may use to secure plan data. So be sure to tune in for this very important issue impacting employee benefit plans.

In this episode of the Proskauer Benefits Brief, senior counsel Damian Myers and associate Liz Down examine the IRS’s enforcement of the Affordable Care Act’s (ACA) employer shared responsibility mandate. We discuss how the IRS is assessing penalties and offer tips on what employers can do when they receive assessment notices. Be sure to tune in for the latest insight on this very important issue.

Unfortunately, disaster scenarios have become all too common and can cause significant disruption for employers, employees and their affected family members. In the wake of Hurricanes Harvey, Irma and Maria, Paul Hamburger, co-chair of Proskauer’s Employee Benefits & Executive Compensation Group, explores the unique issues that employers must consider when preparing their employee benefits disaster relief programs.

Unfortunately, disaster scenarios have become all too common and can cause significant disruption for employers, employees and their affected family members. In the wake of Hurricanes Harvey, Irma and Maria, Paul Hamburger, co-chair of Proskauer’s Employee Benefits & Executive Compensation Group, explores the unique issues that employers must consider when preparing their employee benefits disaster relief programs.

In this episode of the Proskauer Benefits Brief, Paul Hamburger, co-chair of Proskauer’s Employee Benefits & Executive Compensation Group, and associate Katrina McCann discuss the top ten things employers need to know to survive an IRS audit. Although plans can be audited at any time, the IRS is focused on Employee Plans Team Audits (EPTA), which deal with large plans that cover 2,500 or more participants. Even though the number of EPTA plans is fewer than 1%, the IRS has found that these plans cover approximately 60% of all participants and nearly 70% of all plan assets. So, whether you are subject to an EPTA audit, a random audit of a smaller plan, or an issue-specific audit, be sure to listen and understand how these tips can help you survive the IRS audit process.

In this episode of the Proskauer Benefits Brief, senior counsel Anthony Cacace and partner Robert Projansky discuss how severance plans can be subject to ERISA. We examine the key advantages of having severance pay arrangements covered by ERISA and what employers can do to design plans that comply with the substantive and procedural requirements of ERISA, but also maximize the likelihood of benefitting from ERISA coverage. Whether a severance plan or arrangement is governed by ERISA is a rather fact-intensive analysis, so be sure to tune in for how those facts and circumstances can give rise to an ERISA plan.