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The attorneys in Bradley’s Employee Benefits and Executive Compensation Practice Group utilize their extensive knowledge of the increasingly complex legislative and regulatory framework surrounding employee benefits and executive compensation plans in order to provide strategic counsel that helps employers achieve their goals and limit liability.
We assist clients in establishing benefit plans; making changes to existing benefits plans to ensure compliance with applicable laws, including the Internal Revenue Code (Code) and the Employee Retirement Income Security Act (ERISA) together with related regulations of the Department of Labor (DOL), Internal Revenue Service (IRS), and Pension Benefit Guaranty Corporation (PBGC); resolving complex issues that arise in connection with such plans in the context of mergers and acquisitions; and administering plans in a manner designed to minimize liability from a regulatory and litigation perspective.
Our lawyers advise clients on the design, implementation, and administration of tax-qualified retirement plans and provide counsel on IRS, DOL, and PBGC regulatory compliance issues. We have extensive experience advising clients on correction programs, including the IRS’s Employee Plans Compliance Resolution System and the DOL’s Voluntary Fiduciary Correction Program. Working closely with our business lawyers, we assist companies with the special benefits issues that arise in the context of corporate mergers and acquisitions, including successor liability concerns under defined benefit plans, withdrawal liability issues under multiemployer pension plans, restrictions on golden parachute payments under Code Section 280G, and compliance with the provisions of Code Section 409A applicable to nonqualifed deferred compensation arrangements.
Our team assists employers in complying with special industry-related requirements regarding their benefit plans. We have extensive experience in the area of the controlled group and affiliated service group rules that can complicate tax-qualified retirement plans for many public companies, professional service firms, and joint venture entities. We help clients establish and maintain employee stock ownership plans (ESOPs), and we have significant experience with stock-based compensation plans for both public and private companies, including stock options, restricted stock, stock appreciation rights, restricted stock units, and incentive plans.
Apart from complicated tax rules governing benefit plans, we regularly assist clients in addressing fiduciary obligations as they navigate an increasingly changing regulatory environment. We advise companies generally on the application of the various ERISA fiduciary requirements, as well as more specific issues relating to the procedural prudence of the structure and operation of plan administrative committees, the use of company stock, the use of collective trusts, alternative investments, and revenue-sharing issues. We also advise employers on the prohibited transaction rules that may be implicated by many such practices, including the exemptions from the sanctions under both ERISA and the Code.
With the passage of the Affordable Care Act and the privacy, security and breach notification rules under HIPAA, our attorneys are increasingly involved in assisting clients with compliance issues relating to their group health plans. We advise companies on myriad related laws, including COBRA, HIPAA nondiscrimination, and Medicare Secondary Payer rules. We have a particular focus in working with self-funded medical plans, including plans that utilize a voluntary employee’s beneficiary association (VEBA) in connection with the funding of benefits. We also help clients navigate the complex rules relating to multiple employer welfare arrangements (MEWAs) that are implicated by the provision of self-funded medical benefits to employees of certain unrelated employers. On a related point, we are experienced with rules in many states applicable to employee leasing and captive insurance arrangements.
Our lawyers aid clients in negotiating, drafting, and implementing executive employment agreements and related compensation plans as well as advising clients on the unique tax rules applicable to such arrangements. We have extensive experience advising clients regarding the requirements to keep such arrangements in compliance with Code Section 409A, as well as the limited correction measures available when there are operational errors under such plans. We also assist non-profit clients in complying with additional requirements under Code Section 457(f) to their deferred compensation arrangements.
We are very familiar with the use of various insurance arrangements, supplemental executive retirement plans (SERPs), and other equity-based compensation programs. We advise employers on the related funding mechanisms, including the use of grantor trusts (such as rabbi trusts) and corporate-owned life insurance. We also advise clients on related fringe benefit, payroll tax, and reporting issues.
The ESOP Services attorneys at Bradley are skilled in a variety of legal disciplines required in ESOP transactions, including employee benefits, federal taxation, corporate, and banking law. Our lawyers have advised selling shareholders and lenders with respect to the use of ESOPs as a tax-advantaged business planning tool. Bradley has also advised clients on the use of ESOPs to finance the restructuring of a business or fund an acquisition.
The firm's services for companies interested in implementing ESOPs include counseling on the implementation, structure, design, and financing of an ESOP transaction; drafting the employee stock ownership plan and trust agreements; negotiating the loan documents and related security agreements; preparing the corporate documents related to the implementation of an ESOP; negotiating and preparing the legal opinions required by lenders regarding compliance with applicable laws; preparing and filing ruling requests with the Internal Revenue Service; and making presentations to employees regarding the benefits provided under the ESOP.
In addition to representing corporate sponsors of ESOPs, Bradley attorneys also represent ESOP trustees and lenders. The firm advises trustees with respect to their fiduciary responsibilities, both in connection with leveraged ESOP transactions and in ongoing administrative matters. The firm's services on behalf of lenders include counseling regarding the specific business and legal issues arising with ESOPs and the impact on the lender; negotiating and drafting loan documents and related security agreements; and review of the ESOP to ensure that it is prepared and implemented in accordance with applicable laws.
Bradley lawyers are members of the ESOP Association and the National Center for Employee Ownership. We have co-sponsored seminars with both organizations.