Employee Benefits & Pensions - McDermott Will & Emery

Employee Benefits

WHO WE ARE ~ McDermott Will & Emery is a pioneer in the field of employee benefits. For more than 70 years, we have been assisting and advising clients on a variety of employee benefits and executive compensation matters. In 2011, US News–Best Lawyers named McDermott “Law firm of the Year” in the area of Employee Benefits. We have more than 70 lawyers who practice exclusively in employee benefits and compensation, providing counsel in the international planning, implementation and administration of a wide range of compensation and benefit plans and programs.

Many of our lawyers are recognized nationally and internationally as leaders in the employee benefits field. In addition, before joining the Firm, several of our lawyers worked in corporations or insurance companies on employee benefits programs. This combination of leadership and experience provides us with a unique understanding of the actual implementation of employee benefits and compensation programs, adding a vital component to our ability to respond effectively to client needs.

Our diverse clientele adds another dimension to our ability to respond quickly and efficiently with client‑oriented solutions to real-world problems. Our employee benefits lawyers advise corporations, partnerships and organizations from all business sectors, including insurance, manufacturing, retailing, technology, media, service industries (such as airlines and hotels), health care providers, legal and accounting firms, banks and other financial institutions, telecommunications, and the printing, publishing and paper industries. We represent more than 75 Fortune 500 companies and 29 Fortune 100 companies in employee benefits matters on a regular basis. Many of our clients are service providers for employee benefit plans maintained by other employers (including trustees, record-keepers and insurers). Our broad client base also allows us to help clients identify new trends in the field and quickly identify and address any new or potential legal hurdles.

WHAT WE DO ~ Our lawyers regularly handle the full range of issues that affect 401(k) plans, profit sharing plans, employee stock ownership plans (ESOPs), pension plans (including cash balance and other hybrid pension plans), non-qualified deferred compensation and executive compensation plans, health and welfare benefit plans, employment agreements and fringe benefit plans. Often, we are called upon by our clients to conduct compliance reviews in various areas, such as tax qualification, COBRA compliance and fiduciary compliance matters. In addition, to better serve the diverse and growing needs of our clients, our Employee Benefits Group has created several specialized practice groups.

Our Qualified Retirement Plan Group counsels and advises Fortune 500 companies that sponsor retirement plans with plan assets normally exceeding US$100 million. This is a core strength of our employee benefits practice and members of this group routinely advise multinational employers on retirement plan compliance with the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Service (IRS), formal and informal correction programs, tax consequences of contributions to and distributions from qualified retirement plans.

Our Health and Welfare Benefit Plans Group advises clients on the design and administration of health, welfare and other severance and fringe benefit plans, and is anchored by partners who have more than 60 years of collective experience in counseling clients on health and other group benefit plan compliance matters. Lawyers in this group regularly advise clients on matters involving the recently enacted Patient Protection and Affordable Care Act (PPACA), as well as ERISA, COBRA, the Mental Health Parity and Addiction Equity Act, the Health Information Portability and Accountability Act, the Internal Revenue Code and other federal laws affecting welfare benefit plans.

Our Executive Compensation Group counsels clients ranging from Fortune 500 corporations to emerging growth companies on all aspects of executive compensation, including nonqualified deferred compensation, golden parachutes, Section 162(m) and multinational executive benefits, including the impact of the Dodd–Frank Wall Street Reform and Consumer Protection Act. Members of the group include former IRS officials who participated in many of the rulings and regulations that affect executive compensation and who hold leadership positions in the American Bar Association.

Our Employee Benefits Controversy and Litigation Group regularly represents employers as plan sponsors and plan administrators, as well as individual and corporate fiduciaries and service providers, in both routine and complex employee benefits claims, controversies and litigation regarding ESOPs, fiduciary duty, health benefits, retiree medical plans, plan termination and severance pay. This group routinely and successfully handles large class action litigation.

Our ESOP Group includes lawyers with experience developed through work on hundreds of ESOP transactions. One of our lawyers drafted most of the ESOP provisions in the original ERISA legislation, and another was the principal lobbyist in the far-reaching changes enacted in the Tax Reform Act of 1984. We have obtained precedent-setting IRS and Labor Department rulings and exemptions for our clients, and have been involved in landmark litigation matters in the ESOP field.

Our Plan Fiduciary and Investment Management Group can help plan fiduciaries choose service providers and handle plan assets appropriately. Employers frequently encounter questions about the payment of plan expenses, the permissible uses of commissions and other assets (such as insurance company demutualization proceeds) and whether certain arrangements are affected by the prohibited transaction rules. We can help clients avoid fiduciary problems by providing them with a comprehensive process to follow when dealing with fiduciary decisions, as well as provide fiduciary training.

HOW WE CAN WORK FOR YOU ~ With the continuing stream of complex and technical employee benefits legislation and regulation, and with the increased globalization of work forces, employee benefit plan administration has become increasingly difficult. Employers and plan fiduciaries must constantly re-examine and redesign employee benefit programs in light of the latest legislation, government guidance and case law. Because our lawyers are highly specialized and focus their practices on one or two primary practices, our Firm can help clients work through complex problems with a level of employee benefits experience not found at most law firms. In addition, our lawyers have significant experience in negotiations with government agencies, such as the IRS, the Inland Revenue, Occupational Pensions Regulatory Authority, the Department of Labor and the Pension Benefit Guaranty Corporation.

Members of the Employee Benefits Group also have successfully lobbied and testified before U.S. Congress and federal agencies with respect to various proposed laws and regulations. Although litigation typically is not a desirable outcome, if litigation or any other alternative dispute resolution mechanism is necessary, our employee benefits litigation practice members are well-equipped to handle even the most complex employee benefits disputes. In short, we can guide our clients through the maze of regulations and litigations and help them create comprehensive, workable, cost-effective and individually tailored international benefits and compensation programs.

Representative Employee Benefits Experience

Conducted a global benefits compliance review for a large privately held consumer products company in nine countries, and continue to serve as a legal point of contact for ongoing global benefits and employment issues, such as termination of employees, establishment of new benefit plans and compliance with government-mandated benefits like severance, holiday pay, social security, etc.
Shaped employee benefits law for cruise lines by advising companies in this industry on legislative changes affecting their benefit structure
Advised a number of public and privately held companies on the implications of the PPACA, ERISA and the Internal Revenue Code
Secured an important victory for a U.S. auto manufacturer in the U.S. District Court for the Eastern District of Michigan by obtaining preliminary approval on a class action settlement that resolves the company’s retiree medical obligations to its union retirees and their families, allowing the company to remove nearly US$10 billion in retiree medical obligations from its balance sheet
Served as outside counsel for Fortune 100 insurance company with respect to all aspects of their employee benefits and executive compensation programs, including tax-qualified plans, deferred compensation plans and welfare plans with respect to post-transaction planning on a variety of billion-dollar acquisitions and divestitures
Conducted a worldwide incentive compensation practices review of the labor, tax and regulatory risks associated with a client's delivery of incentive compensation in more than 50 countries and worked with local counsel to revise plan documents and award materials to address any legal risks to the extent possible
Defended a global financial services client in the United Kingdom in cutting edge litigation brought by the High Court asserting “indirect restraint of trade” in deferral approach to stock options
Advised a Fortune 200 U.S. health plan provider on the determination of how COBRA should apply to a health reimbursement arrangement (HRA), and designed an innovative approach for the application of COBRA to an HRA that is being considered by the IRS and Treasury Department officials
Defended an international oil company in a class action claiming breach of fiduciary duty in implementing a “paperless” telephone system for administering a 33,000-participant 401(k) plan