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ERISA Fiduciary Investment Basics 2021


Speaker(s): Alan J. Yurowitz, Alicia C. McCarthy, Cassandra Labbees, Howard Pianko, Ira G. Bogner, Jeffrey A. Lieberman, Jeffrey Ross, Linda J. Haynes, Mark E. Seidel, Mary E. Alcock, Matthew T. Rutchik, Michelle C. Yau, Patrick S. Menasco, Rhonda Prussack, Richard K. Matta, S. John Ryan, Sarah E. Downie, Shannon Barrett, Suzzanne Yao
Recorded on: Mar. 15, 2021
PLI Program #: 306675

Alan J. Yurowitz is an attorney in BlackRock’s Legal & Compliance Department and is responsible for ERISA legal and compliance matters.  Alan advises the firm with respect to ERISA’s fiduciary responsibility and prohibited transaction rules in connection with BlackRock’s asset management business.  Prior to joining BlackRock, Alan served as a Corporate Counsel for Prudential Financial where he advised on ERISA issues relating to its asset management business and on compensation and employee benefits matters.  Before Prudential, Alan worked as an associate in the Employee Benefits and Executive Compensation group at Debevoise & Plimpton, advising on the ERISA, tax and securities law aspects of executive compensation and employee benefits.  Alan received his J.D., cum laude, from Rutgers School of Law - Newark.


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 (2012-2021) in Employee Benefits (ERISA) law and New York Super Lawyers (2013-2021).  She recently co-authored the articles “DOL Proposes New Rules Regulating ESG,” The Harvard Law School Forum on Corporate Governance and Financial Regulation (July 7, 2020) and “Sun Capital Redux:  Private Equity and Pension Liability,” The Harvard Law School Forum on Corporate Governance and Financial Regulation (April 5, 2016).

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.


Cassandra Labbees is a Member of the Firm in the Employee Benefits and Executive Compensation practice, in the New York office of Epstein Becker Green. For more than a decade, she has provided counsel to clients in the financial services and health care industries, corporate clients, and tax-exempt and not-for-profit institutions on a wide range of employee benefit issues involving tax-qualified and non-qualified plans, 401(k) plans, ESOPs, defined benefit plans, the Affordable Care Act (ACA), multiemployer plans, and health and welfare plans. Ms. Labbees advises clients on compliance with various laws, including the Employee Retirement Income Security Act (ERISA), the Internal Revenue Code, and COBRA. She also advises on the impact of merger and acquisitions on employee benefit plans, including assistance with plan terminations and integration.

Prior to working at Epstein Becker Green, Ms. Labbees worked at the U.S. Department of Labor, Employee Benefits Security Administration where she served for more than 8 years as an Investigator. In 2019, Ms. Labbees was recommended by The Legal 500 United States in the area of Employee Benefits, Executive Compensation, and Retirement Plans: Design


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 Haynes advises clients on the complex and ever-evolving ERISA fiduciary matters that affect plan fiduciaries today.

Employers who are responsible for operating large employee benefit plans (including investing the assets of those plans) are subject to constantly evolving, complex rules. Linda counsels clients on fiduciary and governance matters raised by operating such plans, including the formation and operation of plan fiduciary committees with respect to such plans, and assisting fiduciaries of such plans in complying with ERISA and effectively managing risk. She advises clients on the complex and ever-evolving ERISA fiduciary matters that are unfolding and impacting plan fiduciaries.

Linda counsels mid-size to Fortune 500 clients in all elements of employee benefit plans and executive compensation. She regularly counsels public and private clients in connection with the design, development, and ongoing compliance of their employee benefit programs, including qualified and nonqualified retirement plans, health plans, cafeteria plans, and other types of welfare plans.

She has substantial experience in advising employee benefit plan fiduciaries regarding their duties and responsibilities. Linda frequently conducts training for fiduciary committees, including training regarding general fiduciary duties under ERISA, prohibited transactions, and current developments. Linda 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. Linda 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.

Linda has significant experience in advising clients concerning their defined benefit pension plans, including cash balance and pension equity plans. Linda's practice also includes advising clients on employee benefits and executive compensation issues raised in mergers, acquisitions, and dispositions.

Linda began her practice in employee benefits law as an employee benefit paralegal more than 30 years ago. Counseling clients in this area for that long has given her a detailed understanding of the multitude of real-world problems employer encounter daily when operating employee benefit plans, and how to craft practical solutions that satisfy the business needs of her clients.

At Seyfarth, Linda enjoys having the opportunity to work with the large group of attorneys who practice exclusively in employee benefits—and who enjoy it as much as she does.


Mark Seidel is the Acting Deputy Regional Director for the New York Regional Office of the U.S. Department of Labor’s Employee Benefits Security Administration.  He assists with the oversight and coordination of the Regional Office’s enforcement program, which is designed to ensure industry compliance with the fiduciary, reporting and disclosure provisions of Title I of ERISA.  Prior to his time with the Employee Benefits Security Administration, Mr. Seidel worked as an employee benefits associate at a law firm in New Jersey.  Mr. Seidel received his J.D. from N.Y.U. School of Law, his M.A. from Stanford University, and his B.A. from Rutgers University.


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.


Michelle C. Yau is Co-Chair of the Employee Benefits practice group at Cohen Milstein Sellers and Toll, PLLC.  Ms. Yau specializes in fiduciary breach cases involving complex financial transactions or products.  Ms. Yau has a passion for finance and its application to ERISA litigation.  She successfully represented a class of participants, in In re Beacon Assoc. Litig., 09 Civ. 0777 (S.D.N.Y.), which, along with other consolidated case, settled for $219 million, representing 70% of the Class members’ out-of-pocket losses.  Ms. Yau also represented ERISA participants in Thole v. U.S. Bank, which reached the United States Supreme Court.  She represents participants in BlackRock’s 401(k) Plan for ERISA violations of the Plan’s fiduciaries, by offering primarily BlackRock funds on the Plan’s fund menu.

Prior to joining the firm, Ms. Yau was in the Honors Program of the Department of Labor, where she was responsible for the enforcement and administration of a variety of labor statutes.  Before law school, Ms. Yau worked as a financial analyst at Goldman, Sachs & Co. in the Financial Institutions Group of the Investment Banking Division.  

Ms. Yau received a B.A. in Mathematics (with distinction, 1997) from the University of Virginia, where she was a member of Phi Beta Kappa and Phi Mu Epsilon (mathematics honors).  Ms. Yau received her law degree from Harvard Law School in 2003, where she was awarded several public interest fellowships, including the Heyman Fellowship for academic excellence and a demonstrated commitment to federal public service. 


Mr. Lieberman’s practice is focused on the fiduciary responsibility provisions ERISA. He has over 20 years of experience advising a wide range of clients regarding such matters, including asset managers, investment advisers, banks, hedge funds, plan sponsors, recordkeepers, private equity funds, pooled investment funds, insurance companies, sponsors of CLO and other securitized vehicles and servicers to such vehicles, issuers of various types of securities, underwriters and trustees. 


Patrick Menasco is a nationally-recognized ERISA and public plan investment lawyer with 25 years of public and private sector experience.  He enjoys longstanding connections with regulators, a broad technical proficiency in ERISA and public plan regulation, and a gift for blending analysis with insight.  Patrick’s work focuses on investment funds (particularly real estate, transportation and stable value-related strategies), general asset management, bank/broker-dealer netting opinions, derivatives and other capital market transactions, prohibited transaction exemptions, government investigations, and adversarial proceedings.  His clients include major national and international financial institutions.

Patrick is also a frequent lecturer on employee benefit investment issues at the Practising Law Institute in New York and has served as an adjunct professor at the George Washington University Law School for ten years. He is regularly recognized by Chambers USA and The Legal 500 lists of top lawyers for employee benefits and executive compensation.


Practice Area:

Employee Retirement and Health Benefits

Plan Governance

Fiduciary Advisory Services

Executive Compensation

International Benefits

Howard Pianko is the head of Seyfarth Shaw’s New York benefits practice. 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 originated and co-chairs two PLI programs involving ERISA investment considerations and another focused on the application of ERISA to the health plan space.


Rhonda Prussack is Senior Vice President and Head of Fiduciary and Employment Practices Liability at Berkshire Hathaway Specialty Insurance.  Ms. Prussack has been with BHSI for the last six of her thirty years in the insurance industry.  In her extensive career, Ms. Prussack has developed and brought to market state-of-the-art policy forms and innovative coverages for corporations, organized labor, municipalities, and not-for-profits.  She also oversees pricing, profitability, underwriting, and marketing of fiduciary and employment practices liability insurance products.  Early in her career, Ms. Prussack had roles at Dean Witter, Johnson & Higgins, and the New York City Employees’ Retirement System.  She has written articles for and been quoted in many publications and is a frequent speaker at ERISA, employment practices, and executive liability seminars around the U.S. and Canada.

Ms. Prussack received her B.A. from Brooklyn College. 

Originally from Brooklyn, Ms. Prussack is now based in New York.  She can be reached at rhonda.prussack@bhspecialty.com


Richard Matta advises clients with respect to the structuring and marketing of investment products and financial services to tax-qualified retirement plans, voluntary employees beneficiary association (VEBA) plans, governmental plans, IRAs, and other tax-exempt investors. His practice focuses on the intersection of ERISA with securities, tax, banking, and other applicable laws.

Rick’s financial products experience includes advising on mutual funds, hedge and private equity funds, bank collective trusts, real estate, derivatives, and other alternative investments. He also advises on investment advisory and “managed account” programs, brokerage and wrap products, recordkeeping platforms, outsourced CIO services, independent fiduciary services, securities lending, bank sweeps, trust and custody services, and service provider “alliance” agreements.

His experience extends to helping plan fiduciaries with governance/compliance audits and development of compliance programs and investment policies. In addition to advising on ERISA fiduciary and prohibited transaction matters, he advises plan service providers on securities law issues involving exemptions from broker-dealer registration, Investment Advisers Act compliance, exemptions from the Investment Company Act, and private offering rules. Representative clients include Fortune 500 and governmental plan sponsors; independent VEBAs; large banks, broker-dealers and mutual fund complexes as well as trust companies and private fund managers.

He also regularly counsels a number of other law firms and their clients in connection with complex and specialized ERISA, IRA, and governmental plan issues. Rick has worked with clients in obtaining scores of Department of Labor prohibited transaction exemptions and advisory opinions, as well as SEC and FINRA guidance and IRS rulings. He advises large defined benefit plan sponsors and fiduciaries on issues relating to the acquisition and holding of employer securities and de-risking transactions such as in-kind contributions of assets and participant cash-outs.

Rick co-chairs Groom’s IRA Practice Group where he advises financial institutions on IRA and HSA products—custody, brokerage, advisory, and other services—and prohibited transaction issues. He also advises family offices, wealth managers and ultra-high net worth individuals with respect to large and complex IRA investment transactions.


S. John Ryan is a partner in Seward & Kissel’s Employee Benefits Group. He joined the Firm in 1998.

John advises a variety of clients — publicly and closely held corporations, partnerships, governmental entities, tax-exempt foundations and sole proprietorships — concerning all aspects of employee benefits matters. These matters include representation involving the structuring, drafting, operation, amendment and termination of qualified and non- qualified pension, profit-sharing,  stock bonus  and employee stock ownership plans, individual retirement accounts, stock option plans and group life, disability, medical reimbursement, and other types of welfare plans.

John has particular expertise with the fiduciary aspects of ERISA. He regularly assists clients in developing investment products for the pension plan market, tailoring investment products for specific plan investors and analyzing the fiduciary duties, and prohibited transaction risks imposed by these investment structures, specific investment agreements or potential transactions on money managers.

John is a member of the American Bar Association (section on taxation) and has been recognized by Best Lawyers in the practice of Employee Benefits (ERISA) Law in the years 2006 – 2017, inclusive.


Sarah Downie is an Executive Compensation & Benefits partner in Weil’s Tax Department 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 is recognized for Employee Benefits by Super Lawyers and has been recommended for Employee Benefits and Executive Compensation by Legal 500 US. She 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 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 senior counsel and advises the firm on products and services to ERISA (Employee Retirement Income Security Act) plans. 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.


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.

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 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.