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Proposed Form 5500 Overhaul in the Trump Administration: An Insight into the Minds of the Regulators


Speaker(s): Elizabeth F. Drake, Erin M. Sweeney, Garrett A. Fenton
Recorded on: Feb. 1, 2017
PLI Program #: 207352

Erin Sweeney advises on all facets of healthcare reform, executive compensation and employee benefit plan administration, design and qualification, including the application of Title I of ERISA to such plans. Ms. Sweeney counsels and represents parties in litigation regarding fiduciary obligations including plan investments, fee disclosure and prohibited transactions and exemptions. She also provides advice concerning health privacy (HIPAA), voluntary exit incentive programs, plan termination, downsizing, welfare and pension benefit claims, health insurance continuation (COBRA), withdrawal liability, post-retirement medical benefits, the employee benefits provisions of the Americans with Disabilities Act and the Age Discrimination in Employment Act and employee benefits issues arising in corporate acquisition, financing and restructuring transactions.

Erin Sweeney advises on all facets of healthcare reform, executive compensation and employee benefit plan administration, design and qualification, including the application of Title I of ERISA to such plans. Ms. Sweeney counsels and represents parties in litigation regarding fiduciary obligations including plan investments, fee disclosure and prohibited transactions and exemptions. She also provides advice concerning health privacy (HIPAA), voluntary exit incentive programs, plan termination, downsizing, welfare and pension benefit claims, health insurance continuation (COBRA), withdrawal liability, post-retirement medical benefits, the employee benefits provisions of the Americans with Disabilities Act and the Age Discrimination in Employment Act and employee benefits issues arising in corporate acquisition, financing and restructuring transactions.

Ms. Sweeney previously served as Senior Benefit Law Specialist for the Office of Regulations and Interpretations at the U.S. Department of Labor. She was a primary architect of the Department of Labor's default investment regulation proposal that impacts mutual funds, investment managers, employers and plan trustees. She received an Exceptional Achievement award for her participation in drafting the Pension Protection Act, the most significant pension legislation since the enactment of ERISA, which affects virtually all pension plans, employers, plan investment managers and plan service providers. Ms. Sweeney also served as an expert witness for the United States in multiple ERISA matters.

Prior to joining Miller & Chevalier, Ms. Sweeney was Counsel at Latham & Watkins LLP, Paul Hastings LLP, Dickstein Shapiro LLP and an Associate at Arent Fox LLP.

 
Government Experience
  • Senior Benefits Law Specialist, Office of Regulations and Interpretations, United States Department of Labor, 2003 - 2007

Rankings and Recognition
  • Fellow, American College of Employee Benefits Counsel
  • Exceptional Achievement Award, U.S. Department of Labor

Professional and Community Involvement
  • Senior Editor, Employee Benefits Law
  • Chair, Fiduciary Responsibility Subcommittee, Employee Benefits Committee, Section of Taxation, American Bar Association
  • Co-Chair, ERISA Subcommittee, Employment Rights and Responsibilities Committee of the Labor and Employment Law Section, American Bar Association

Bar Admissions
  • District of Columbia
  • New York
  • Pennsylvania

Court Admissions
  • United States Supreme Court
  • United States Court of Appeals for the District of Columbia
  • United States Court of Appeals for the Fourth Circuit
  • United States Court of Appeals for the Fifth Circuit
  • United States Court of Appeals for the Eleventh Circuit
  • United States District Court for the District of Columbia
  • United States District Court for the Eastern District of Pennsylvania
  • United States District Court for the Southern District of New York
  • United States District Court for the District of Maryland
  • United States Tax Court

Education
  • M.A. (Law and International Affairs), American University School of International Service, 1990
  • J.D., American University Washington College of Law, cum laude, 1989
  • B.A. and B.S., Ohio University, summa cum laude, 1986

Practice Areas


Garrett Fenton practices in the areas of employee benefits, tax and executive and deferred compensation, with a focus on health and welfare benefits and healthcare reform (ACA) implementation. Within these areas, he assists primarily large employers and health insurers on a wide range of topics, including implementation of ACA's "market reform" provisions, compliance with various taxes, fees and reporting obligations imposed under ACA and related issues under ERISA, the Internal Revenue Code, the Public Health Service Act and other applicable laws; wellness program design and implementation; cafeteria plans; COBRA compliance; HIPAA Privacy and Security Rules; Medicare Secondary Payer laws; day-to-day plan administration issues; and general ERISA and tax matters in connection with employer-sponsored health, welfare and retirement plans. Mr. Fenton has been particularly active in tracking the development of ACA-related legislative, regulatory and case law developments since the healthcare reform debate began in 2009.

Prior to earning his LL.M. in Taxation at the University of Florida Levin College of Law, Mr. Fenton practiced civil and commercial litigation in Fort Lauderdale, Florida. He was awarded the prestigious Dean's Scholarship for Superior Academic Achievement at Southwestern University School of Law.

Representative Engagements

  • Assisted multiple large employers, in a broad range of industries, determining compliance strategies, establishing internal policies, negotiating with vendors and preparing contract language to implement the ACA's employer "shared responsibility" (or "pay-or-play") provisions.
  • Provided ongoing ACA implementation advice and consulting to a large, nationwide conglomerate of health insurers, acting in their roles as insurers developing ACA-compliant health insurance products (inside and outside the Health Insurance Marketplaces) and as employers sponsoring ACA-compliant health plans for their employees.
  • Advised a Fortune 50 company regarding a wide range of legal compliance and employee relations issues in connection with a variety of health and welfare plans, including ACA, COBRA, ERISA HIPAA, the Americans with Disabilities Act, the Genetic Information and Nondiscrimination Act of 2008 (GINA), Medicare Secondary Payer rules, applicable state data privacy laws and other legal areas.
  • Prepared a comprehensive white paper and provided ongoing advice on the design and operation of wellness programs, for a large regional health insurer.
  • Assisted a large Silicon Valley employer in establishing an on-site medical clinic. Consulting services ranged from negotiating contracts with vendors, assisting in preparing HIPAA Privacy and Security policies and procedures, providing advice regarding the clinic's interaction with other health and welfare plans (including the employer's HSA-compatible high-deductible health plan) and preparing employee communication materials.

Rankings and Recognition
  • Legal 500: Labor & Employment: Employee Benefits and Executive Compensation, 2015
  • Florida Bar President's Pro Bono Service Award, 2015

Professional and Community Involvement
  • Member, Section of Taxation, American Bar Association
  • Member, Taxation Section, District of Columbia Bar

Bar Admissions
  • District of Columbia
  • California
  • Florida
  • Oregon

Clerkships
  • Clerk, The Honorable Jeffrey W. Johnson, United States District Court for the Central District of California

Education
  • LL.M. (Taxation), University of Florida, Levin College of Law, 2008
  • J.D., Southwestern University School of Law, magna cum laude, 2006
  • B.A., University of Washington, 2003

Practice Areas


Elizabeth Drake practices in the area of employee benefits and executive compensation, with a focus on Employee Retirement Income Security Act (ERISA) and tax requirements applicable retirement plans and non-qualified arrangements, health and welfare benefits and fringe benefit programs. In recent years, Ms. Drake’s practice has focused on counseling and advocacy work on behalf of U.S. Fortune 500 companies on complex and sensitive matters involving their defined benefit pension and 401(k) plans. A large portion of her practice involves assisting Fortune 150 companies with pension plan de-risking activities, including the settlement of pension plan liabilities through lump sum window programs and pension plan terminations and annuity placements. She has also assisted clients in compliance with regulatory and fiduciary obligations and sensitive employee communications when negotiating vendor agreements.

Her understanding of the legal requirements and day-to-day administrative issues make her uniquely able to guide clients through the challenges presented by ever-evolving legal requirements and complex administrative issues.

Ms. Drake advises her clients on complex and sensitive matters, such as preparing defined benefit pension plan amendments and the related ERISA section 204(h) notices (much like the communication that plaintiffs took issue with in the Cigna v. Amara case decided by the U.S. Supreme Court this year) as companies take steps to wind down their pension plans and assisting clients in the implementation of Roth contribution features to their 401(k) plans and the complex tax and employee communication issues associated with those features. Ms. Drake also represents clients before the IRS National Office in connection with technical advice proceedings, letter ruling requests and closing agreements. She also assists clients in securing closing agreements with the IRS under the Employee Plans Compliance Resolution System (EPCRS).

Before joining Miller & Chevalier, Ms. Drake practiced as an associate in the Employee Benefits and Executive Compensation group at Morgan, Lewis & Bockius LLP in Washington, DC. Prior to her time at Morgan, Lewis & Bockius, she worked at an actuarial and benefits consulting firm in Pittsburgh, PA.

Representative Engagements

  • Obtained private letter ruling allowing company to transfer excess pension assets to a Section 401(h) account through a Section 420 transfer on behalf of retirees who have had their pension benefits settled through retiree lump sum window or otherwise (PLR 201511044).
  • Obtained three private letter rulings allowing companies to offer retiree lump sum windows as part of their pension plan de-risking strategies (PLR 201228045, PLR 201431034, PLR 201424031).
  • Obtained private letter ruling involving a transaction freezing of accruals and contributions under a floor-offset retirement plan arrangement and Rev. Rul. 76-259 and Section 411(d)(6).
  • Assisted major companies in the termination of their defined benefit pension plans and related annuity placements, some of which included Section 401(h) accounts for retiree medical benefits.
  • Assisted large and mid-size clients in negotiating vendor agreements, employee communications and compliance reviews in connection with recordkeeper changes.

Rankings and Recognition


  • Chambers USA: Employee Benefits & Executive Compensation (District of Columbia), 2014 - 2015
  • Legal 500: Labor & Employment: Employee Benefits and Executive Compensation, 2013 - 2014, 2016
  • Washington, D.C. Super Lawyers®: Super Lawyer: Employee Benefits, 2014 - 2016
  • Washington, D.C. Super Lawyers®: Rising Star: Employee Benefits, 2013

Professional and Community Involvement

  • Member, American Society of Pension Professionals and Actuaries

Bar Admissions

  • District of Columbia
  • Virginia

Education

  • J.D., The George Washington University Law School, with honors, 2003
  • B.S., Pennsylvania State University, 1991