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ERISA Fiduciary Investment Basics 2017


Speaker(s): Alicia C. McCarthy, Glenn E. Butash, Howard Pianko, Ira G. Bogner, Jeffrey Ross, Jennifer F. Whetsell, Linda J. Haynes, Mary E. Alcock, Peggy A. Whitmore, AIF, CRPS, PRP, Sarah E. Downie, Shannon Barrett, Suzzanne Yao
Recorded on: Mar. 20, 2017
PLI Program #: 185993

Alicia C. McCarthy is Counsel in the Executive Compensation and Benefits Department at Wachtell Lipton.  Ms. McCarthy advises clients with respect to executive compensation and employee benefit matters involving mergers and acquisitions, spin-offs, joint ventures, financings, litigation as well as plan compliance.  Her experience includes ERISA’s fiduciary rules and the investment of plan assets with an extensive background representing financial institutions, fund sponsors and ERISA investors.  She also advises on executive compensation matters including performance-based compensation plans, nonqualified pension plans, and employment, severance and change in control agreements.

Ms. McCarthy chairs the Committee of Employee Benefits and Executive Compensation of the Association of the Bar of the City of New York.  She speaks frequently on executive compensation and ERISA topics for the Practicing Law Institute where she co-chairs the ERISA Investment Fiduciary Basics program.  She is the recipient of the Pro Bono Publico Award (2010, 2011 and 2014) for her services to The Legal Aid Society.  She is also recognized in Best Lawyers of America (2012-2019) in Employee Benefits (ERISA) law and New York Super Lawyers (2013-2018).  She recently co-authored the articles “Sun Capital Redux:  Private Equity and Pension Liability,” The Harvard Law School Forum on Corporate Governance and Financial Regulation (April 5, 2016); “Counting to 80,” Private Equity Manager (August 2013); and “New Ways to Manage Old Pension Liabilities,” Law 360 (June 17, 2013).

Ms. McCarthy received her B.A. in 1981 from Georgetown University and her J.D. cum laude in 1984 from Brooklyn Law School, where she was a member of the Journal of International Law.


Ira G. Bogner is chair of the firm’s Tax Department and a member of the Employee Benefits & Executive Compensation Group. Ira represents a varied list of clients, including financial service companies, entertainment industry clients, and tax-exempt organizations, and also actively represents individual executives in executive compensation matters.

Areas of Concentration

Ira has provided guidance to clients on a wide variety of matters in the areas of employee benefits and executive compensation, including:

  • investment of plan assets
  • implementation of employee benefit plans
  • employee benefit issues in mergers and acquisitions
  • awarding of equity-based compensation
  • negotiation and drafting of employment agreements and severance arrangements
  • structuring, analyzing and maintaining investment funds that are suitable for plan investors

Ira counsels clients with respect to the tax, securities law disclosure, corporate governance, stock exchange and other requirements relevant to executive compensation arrangements. Ira also provides advice regarding equity arrangements, employment agreements, change in control agreements and all other types of executive compensation arrangements, including guidance regarding “409A,” “162m,” “457A,” and “280G.”

Ira frequently is called on to structure and analyze alternative investments for pension trusts and other exempt organizations. He also works with the firm’s corporate and real estate lawyers in structuring and maintaining investment funds that include participation by pension plans. Through his work in the investment fund area Ira has obtained substantial experience in applying the rules provided under the “plan asset” regulations, including the operation of venture capital operating companies and real estate operating companies. He has assisted in the formation of private equity, real estate, infrastructure and hedge funds, including “fund of funds.” Ira also has advised clients on both avoiding ERISA “plan asset” status and operating an investment fund in accordance with ERISA.

Thought Leadership

Ira has published a number of articles in publications such as The New York Law Journal, The New Jersey Law Journal, The Daily Deal, The Journal of Pension Planning and Compliance, Mergers and Acquisitions (The Monthly Tax Journal), The Journal of Taxation and Regulation of Financial Institutions, The Metropolitan Corporate Counsel, European Private Equity & Venture Capital Associations, The LPA Anatomised and Private Equity International and has been named to the Board of Advisors of the Journal of Taxation and Regulation of Financial Institutions. He also has lectured on topics such as the classification of workers, drafting employment agreements, equity alternatives for senior executives, investing IRA assets, the plan asset regulations, shareholder approval of equity plans, Code Section 409A, and key provisions for ERISA investors investing in a private equity fund.

Recognition

Ira has been recognized and ranked by various directories. US Legal 500 has carried the following comments: “Ira Bogner is ‘available, responsive and knowledgeable;” “Ira Bogner ‘provides a level of comfort with respect to business issues that is rare in the world of ERISA;” “Ira Bogner is the ‘go-to guy for fund sponsors needing help with ERISA.’"


Linda J. Haynes is a partner practicing in the Employee Benefits and Executive Compensation Department.  She has substantial experience counseling mid-sized to Fortune 500 clients in all elements of employee benefit plans and executive compensation.  Ms. Haynes regularly counsels public and private clients in connection with the design, development and on-going compliance of their employee benefit programs, including qualified and non-qualified retirement plans, health plans, cafeteria plans, and other types of welfare plans.

Ms. Haynes has significant experience in advising clients concerning their defined benefit pension plans, including cash balance and pension equity plans.  In addition, Ms. Haynes has extensive experience in developing and implementing executive compensation programs (including equity-based and deferred-compensation programs) for public and private companies.  Ms. Haynes’ practice also includes advising clients on employee benefits and executive compensation issues raised in mergers, acquisitions and dispositions.

She has substantial experience in advising employee benefit plan fiduciaries regarding their duties and responsibilities. For numerous clients, Ms. Haynes routinely participates in their fiduciary committee meetings.  She frequently conducts training for fiduciary committees, including training regarding general fiduciary duties under ERISA, prohibited transactions and current developments.  Ms. Haynes regularly advises clients regarding fiduciary issues and obligations raised by proposed plan investments.  In addition, she counsels clients regarding employee benefit plan investment policies, negotiates investment management agreements, and reviews alternative investment vehicles.  Ms. Haynes works closely with the firm’s Employee Benefits Litigation group in cases involving complex ERISA issues, including fiduciary issues and hybrid defined benefit plan issues.


Mary E. Alcock is counsel based in the New York office.

Ms. Alcock’s practice focuses on employee benefits and executive compensation matters, including design and regulatory compliance. She regularly counsels financial institutions on the issues arising under pension and tax laws with respect to their many and varied interactions with pension funds. Ms. Alcock also advises clients on corporate governance issues as well as on disclosure issues relating to compensation matters.

Ms. Alcock is recognized as a leading employee benefits lawyer by Chambers USA, The Best Lawyers in America and The Legal 500 U.S.

Ms. Alcock joined the firm in 1993 and became counsel in 2002. She received a J.D. degree in 1993 from Yale Law School and an undergraduate degree, summa cum laude, in 1988 from Yale University.

Ms. Alcock is a member of the New York State Bar.


Practice Area:

Employee Benefits

Plan Governance

Fiduciary Advisory Services

Executive Compensation

International Benefits

Howard Pianko is the head of Seyfarth Shaw’s New York benefits practice and the national chair of its Fiduciary Advisory Services practice group. During his more than thirty-five years of experience in employee benefits law and executive compensation, he has counseled both domestic and international clients on matters running the full benefits gamut. His current practice focuses extensively on fiduciary and plan governance matters, executive compensation (including both domestic and cross-border equity and incentive plans) as well as benefit and employment considerations in M&A transactions, including post-transaction implementation and restructuring.

He is a Charter Fellow in the American College of Employee Benefits Counsel and a founding member of the International Pension and Employee Benefits Lawyers Association. He has been recognized for his professional expertise by, among others, Chambers, Legal 500 and Best Lawyers in America and also designated as a BTI Client Service All-Star. He co-chairs the basic ERISA fiduciary program as well as the more advanced PLI Pension Investment Program intended for more advanced practitioners in this area.


Sarah Downie is a partner in Weil’s Executive Compensation & Benefits practice and is based in New York. Ms. Downie advises clients on all aspects of compensation and employee benefits.

Ms. Downie has extensive experience in the executive compensation and employee benefits aspects of mergers, acquisitions and financings. She represents senior executives and companies in the negotiation and drafting of employment and severance agreements. She also advises as to the design and operation of executive and employee benefit arrangements including equity compensation and cash incentive plans, change in control and retention arrangements and nonqualified deferred compensation plans. In addition, Ms. Downie regularly advises employers on the design and operation of tax-qualified retirement plans, including 401(k) plans, 403(b) plans and 457(b) plans, as well as health and welfare benefit plans.

Ms. Downie advises clients on pension plan investment and compliance with ERISA’s fiduciary obligations and prohibited transaction rules. She regularly counsels private fund sponsors in connection with ERISA’s “plan asset” regulations and with VCOC, REOC and similar issues.

Ms. Downie served as Chair of the New York City Bar Association’s Employee Benefits and Executive Compensation Committee and is a member of the Steering Committee of the New York Chapter of Worldwide Employee Benefits Network.


Shannon Barrett is a partner in O’Melveny’s Washington, DC office.  He concentrates his practice on ERISA-related litigation and on providing advice relating to Title I of ERISA. He has been involved in litigating a broad range of ERISA matters at both the trial and appellate levels, with a particular focus on fiduciary issues. In addition to his litigation practice, Shannon has assisted clients in responding to regulatory investigations and has counseled clients, including financial institutions and plan sponsors, on ERISA issues such as fiduciary structure, fee disclosure, and compliance with ERISA’s prohibited transaction provisions. Shannon also has advised independent fiduciaries in their representation of employee benefit plans’ rights in connection with ERISA and securities settlements.

Shannon is a frequent thought leader on ERISA-related topics and serves as the co-editor of the ERISA Litigation Reporter. He is recognized by Chambers USA and Legal 500 in the ERISA Litigation (Nationwide) category.


Suzzanne is associate general counsel and advises the firm on products and services to ERISA (Employee Retirement Income Security Act) plans. She also assists in maintaining the firm’s internal retirement plans. Suzzanne is co-chair of the Firmwide Asian Professionals Network. She joined Goldman Sachs in 2007 as a vice president in the ERISA and Benefits Group and was named managing director in 2013. Prior to joining the firm, Suzzanne was an associate in the Employee Benefits and Executive Compensation Group at Fried, Frank, Harris, Shriver & Jacobson LLP. Suzzanne earned a BA from Columbia University and a JD from Harvard Law School.


As Managing Counsel, U.S. Compensation & Benefits, Glenn Butash provides legal advice to Nokia (formerly Alcatel-Lucent) with respect to the company’s U.S. defined benefit, defined contribution, and employee welfare benefit plans and deferred compensation arrangements.  He advises the company on plan design issues and prepares plan amendments; provides legal advice to the company with respect to plan administration; assists with employee and retiree communications; provides benefits-related legal support in connection with acquisitions, divestitures and other corporate transactions; works on ERISA fiduciary matters arising from the investment of plan assets; addresses executive compensation issues; and oversees employee benefits litigation on behalf of the company and its plans.  He also regularly advises the company’s fiduciary committees regarding their ERISA duties.

Glenn received his J.D. from Fordham University School of Law and his B.A. from Boston University.  Prior to joining Nokia, Glenn was in private practice in New Jersey and New York.


Jeffrey Ross is a partner and chair of the Executive Compensation & ERISA Department, resident in Fried Frank’s New York office. He joined the Firm in 2008 and became a partner in 2009. Mr. Ross’s broad practice focuses on high-stakes ERISA and executive compensation matters in complex transactions.

Mr. Ross is regarded as one of the top ERISA attorneys advising on structuring and compliance matters for many of the largest standalone and institutional hedge funds and alternative asset managers in the world. As part of the Firm’s market-leading Asset Management team, Mr. Ross regularly advises on complex ERISA fiduciary matters, with particular emphasis on the application of ERISA’s fiduciary and prohibited transaction rules to the structuring, operation, and administration of a wide range of private investment funds and investment management arrangements. He counsels extensively regarding ERISA’s Plan Asset Regulations and routinely assists clients wishing to operate plan asset hedge funds in compliance with ERISA. Working closely with the White Collar Criminal Defense team, Mr. Ross also regularly assists clients in regulatory enforcement actions and investigations involving the US Department of Labor, the US Securities and Exchange Commission (SEC), and the Financial Industry Regulatory Authority (FINRA).

As part of the Firm’s sophisticated M&A and Private Equity teams, clients frequently call upon Mr. Ross to advise on the employee benefits and executive compensation matters arising in connection with mergers, acquisitions, dispositions, and other related transactions. His practice focuses on the structuring and design of equity compensation arrangements for private and public companies, as well as representing numerous private equity sponsors and their portfolio companies in financial and strategic transactions, including IPOs and other company exits.

Mr. Ross also frequently represents executive management teams, including CEOs and other C-Suite executives, in their highest-stakes matters. For example, Mr. Ross has recently assisted such clients in negotiating change-in-control arrangements, significant co-investment opportunities, high-ticket multiyear employment contracts, complex performance-based pay packages, separation arrangements involving significant amounts of equity, and similar arrangements.

Mr. Ross is a frequent speaker on ERISA and compensation matters and is consistently recognized by Chambers USA: America's Leading Lawyers for Business and The Legal 500 as a leading individual in Employee Benefits and Executive Compensation. Mr. Ross is also a board member of The Jewish Community Project Downtown.

Mr. Ross received his JD from New York University School of Law in 2001, where he was an associate casebook editor of the law school’s Moot Court Casebook. He received his BA, cum laude, with honors in Latin Literature, from Yale University in 1998. Mr. Ross is admitted to practice in New York.


Jennifer F. Whetsell is Associate General Counsel, Labor & Employment at Visiting Nurse Service of New York, where since 2012 she has provided legal counsel on a variety of matters involving employment law and employment benefits, as well as certain immigration, health, tax and not-for-profit regulations.  From 2003 to 2012, Ms. Whetsell was an Associate Attorney in the New York offices of Debevoise & Plimpton LLP, where she counseled clients on tax, executive compensation and employee benefits matters.  Ms. Whetsell received her J.D. from New York University School of Law in 2002.


Peggy Whitmore, AIF®, CRPS, PRP Peggy joined CAPTRUST in 2014 as Vice President, Financial Advisor and is responsible for providing investment advisory services to fiduciaries of corporate retirement plans.  Prior to joining the firm, Peggy served as managing director with 401(k) Advisors charged with assisting plan sponsor clients to adopt ongoing fiduciary best practices, including investment due diligence, fee benchmarking, plan design, and employee education and has worked in the industry over 30 years.  She received a Bachelor of Business Administration degree in finance from Texas State University-San Marcos. Peggy is also an Accredited Investment Fiduciary (AIF), and holds the Chartered Retirement Plan Specialist designation from the College of Financial Planning (CRPS) and the Plan Sponsor Retirement Professional (PRP) designation from the Plan Sponsor Institute.  In 2009, 2010, 2011, and 2012 Peggy ranked on the 401kWire list of “Top 300 Most Influential Advisors in Defined Contribution.  In 2010, 2011, and 2013 she was also ranked among PLANSPONSOR Magazine’s “Top 100 Plan Advisors” in the country.  NAPA named her “One of the Top 50 Female Advisors in the Country” in 2016.