As employee benefits legislation and regulation grow in complexity and the global workforce becomes more interconnected, the demands placed on employers and employee benefit plan administrators are increasing in intensity. Plan sponsors and fiduciaries must continually reexamine and redesign employee benefit programs in light of the latest government guidance, case law and emerging industry best practices, domestically and internationally.
The Legal 500 has named our employee benefits and executive compensation team and individual lawyers among the top providers in the country, and US News-Best Lawyers honored us as the first-ever “Law Firm of the Year” in Employee Benefits in 2011-2012. Chambers USA has also named McDermott “Law Firm of the Year” in Employee Benefits, and has singled out many of our lawyers for individual recognition.
As pioneers in the field of employee benefits and executive compensation, McDermott’s lawyers have advised clients on virtually every form of benefit plan created. Rather than offering adjunct or add-on counsel in this area, we are focused on employee benefits issues above all else. We provide ongoing employee benefits counsel to more than 60 Fortune 500 companies and one-fifth of Fortune 100 companies. We also advise service providers for employee benefit plans maintained by other employers, including trustees, recordkeepers and insurers. Our broad client base allows us to help clients recognize new trends in the field and quickly identify and address potential legal hurdles.
Our lawyers 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. To help minimize potential risks, we regularly conduct compliance reviews in various areas, such as tax qualification, COBRA compliance and fiduciary compliance matters. We also provide privacy and data security advice to help ensure that plan compliance obligations are met when regulated personal data is made accessible to plan service providers.
We wrote the law, we changed the law, we wrote the book. Our group is the largest and most-skilled ESOP practice in the United States, with coverage in all legal disciplines necessary to effectuate a successful ESOP transaction: corporate, tax, employee benefits, securities, labor, litigation and antitrust. Our experience emanates from having drafted most of the ESOP provisions in the original ERISA legislation, along with lobbying for the far-reaching changes enacted in the Tax Reform Act of 1984. We have obtained precedent-setting IRS and Department of Labor rulings and exemptions and been involved in landmark ESOP litigation matters. We provide ongoing counsel to the leading independent fiduciaries, public and private company sponsors, business owners, union and employee groups, and also advise lending institutions on the development of innovative financing techniques for utilizing the ESOP structure more fully.
Tax-exempt organizations face strict requirements and increased regulatory scrutiny with regard to executive compensation, taxable and non-taxable fringe benefits, and qualified and non-qualified retirement and welfare plans. We advise clients on issues the IRS is likely to consider in audits and inquiries, including board review of compensation, board members’ degree of independence, proper reporting of compensation and benefits on Form 990, and options for establishing the “rebuttable presumption of reasonableness” under the intermediate sanctions rules. We also identify and address key questions that should be considered before IRS contact occurs, including preparation and assembly of appropriate documentation to disclose, the valuing and reporting of deferred compensation arrangements, and information that is protected from disclosure by the attorney-client privilege.
We work with a broad range of multinational and domestic employers in designing, amending, spinning off, merging, administering and terminating 401(k) plans, ESOPs, cash balance and other defined benefit plans, and other qualified retirement plans. We regularly represent clients before the IRS, DOL and the PBGC on retirement plan matters, including determination letter requests, correction of plan defects, private letter rulings, advisory opinions and prohibited transaction exemptions. We help our clients negotiate service provider agreements, counsel plan sponsors on fiduciary and committee governance best practices, draft plan amendments and employee communications, and advise buyers and sellers in transactions involving retirement plans. We have extensive experience with cutting-edge issues such as de-risking techniques for defined benefit plans, ERISA requirements for employer securities in qualified plans, and sophisticated plan investment strategies.
A consumer products company on implementation of a “soft freeze” of a cash balance plan and a transition to a DC-oriented retirement program
A multinational pharmaceutical company with respect to consideration of partial termination issues and PBGC reporting under sections 4043 and 4062(e) of ERISA in connection with downsizing and relocation of US operations
The oldest and largest nonprofit, nonsectarian hospital system in New Jersey on a number of employee benefits and executive compensation issues, including advising on their pension plan commitments and funding strategies, alternative ways to structure pension and benefits provisions, use of plan assets to purchase large medical equipment and lease back to the plan sponsor, and qualification under legislation for funding relief
Numerous cruise lines with respect to legislative and regulatory changes that affect deferred compensation, including working with the US Congress to address unique legislative concerns with benefits regulations
A global consumer goods company on a broad range of retirement plan matters, including issues relating to the split of the business into two units, DOL and SEC requirements for electronic delivery of employee communications, a unitized employer stock fund, and the restructuring of plan administrative committee governance
A Fortune 500 retail office supply chain on fiduciary and other issues associated with contributing 100 million shares of unregistered employer stock to its pension plan, and represented the company on a PBGC premium audit
Private equity funds with respect to analyzing discrimination testing issues and PBGC liability issues for their portfolio companies
A private equity portfolio company with structuring a $100 million contribution into a defined benefit plan
A Fortune 100 company with its plan merger and retirement plan integration, including annuitization of cash balance plan benefits, for more than $10 billion in assets
A multibillion-dollar 401(k) plan in changing its investment fund lineup from mutual funds to separately managed “white label” funds and in effecting the reenrollment of all participants
A multinational pharmaceutical company in connection with the de-risking of its defined benefit pension plan, resulting in the cashout of more than 5000 participants
A global specialist in energy management on the establishment of a separate subsidiary for the provision of retirement plan benefits to globally mobile employees
A large risk retention group in the complete redesign of qualified and non-qualified retirement benefit platforms, leading a team of experienced actuaries to address complex technical issues and present options to the board despite shifting leadership, priorities and demands
A Bay Area new media technology company on employee benefit issues in its IPO
An institutional trustee with respect to multiple acquisitions made by an ESOP of a majority of issued and outstanding stock of the ESOP-sponsor, including most recently, the acquisition of a California-based chain of integrated, multi-specialty medical facilities from an individual seller and private equity group warrant holders for a $270 million purchase price and the negotiation of warrants issued in connection with outstanding subordinated debt
A US-based company focused on providing job site solutions for industrial projects in the sale of all issued and outstanding common stock to an ESOP, including the economic structuring of the transaction with respect to senior and subordinated debt and the design and implementation of a management incentive plan
A US-based, 100 percent ESOP-owned company providing call center services, in serial acquisitions of target companies utilizing the ESOP structure to provide tax incentives to the selling shareholders of the target entities, allowing for an efficient rollup of multiple entities
An engineering-construction company partially owned by an ESOP to facilitate the purchase of remaining shares by the ESOP when the non-ESOP shareholder became bankrupt, including testimony in court and negotiations with the bankruptcy trustee, shareholder’s creditors and institutional ESOP trustee
An ESOP-owned company to challenge a Department of Labor finding of a fiduciary breach in connection with the structuring of a $50 million ESOP transaction and proposed prohibited transaction and criminal penalties, with the result that the Department of Labor dropped all allegations without any required corrective actions
Ongoing counsel for sponsors of more than 300 ESOPs for annual and day-to-day operational issues, including allocations, loan repayments, regulatory compliance and interaction among the company, trustee and participants
A health care company in its conversion from not-for-profit status to a for-profit 100 percent ESOP-owned company, including advice on compliance with tax and state corporate rules for not-for-profit corporations
An ESOP sponsor in negotiations with an institutional ESOP trustee to consolidate and refinance ESOP loans in the total amount of $350 million to be repaid over a period of 50 years
A mezzanine lender providing $250 million of financing for a company to transition to a 100 percent ESOP-owned S-corporation
A large institutional trustee against fiduciary breach allegations in several successful federal district and federal circuit court cases pre- and post-Dudenhoeffer