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ERISA Fiduciary Investment Basics 2015


Speaker(s): Alicia C. McCarthy, David C. Olstein, Erin K. Cho, Erin Rose Miner, Glenn E. Butash, Howard Pianko, Ira G. Bogner, Jeffrey Ross, Linda J. Haynes, Michael J. Albano, Patrick S. Menasco, Robert J. Raymond, Sarah E. Downie, Shannon Barrett, Suzzanne Yao
Recorded on: Feb. 4, 2015
PLI Program #: 59265

David C. Olstein is a counsel at the firm of Skadden, Arps, Slate, Meagher & Flom LLP and a member of the firm’s Executive Compensation and Benefits Group.  His practice focuses on the fiduciary responsibility provisions of ERISA. He has extensive experience advising asset managers on ERISA matters, including compliance with ERISA’s prohibited transaction rules, in connection with the investment of pension plan assets. Mr. Olstein also regularly advises fund sponsors on ERISA matters, including the application of ERISA’s “plan asset” rules, in connection with the establishment and operation of private investment funds. He also has represented issuers and underwriters in connection with the marketing of securities to investors subject to ERISA, and has advised plan sponsors and creditors on pension liability issues arising under Title IV of ERISA.

Mr. Olstein is a member of the New York City Bar Association Committee on Employee Benefits and Executive Compensation and currently chairs the Subcommittee on Private Equity & ERISA Fiduciary Duties.

Education

J.D., University of Virginia School of Law
B.A., Johns Hopkins University

Bar Admissions

New York

Selected Authorships

  • Co-Author, “Sun Capital Ruling Exposes PE Funds to Pension Liabilities,” Law360, July 31, 2013
  • Co-Author, “Application of Plan Asset Rules to Plan Investments and Contributions,” in ERISA Fiduciary Law (Susan P. Serota and Frederick A. Brodie eds., 2d ed. 2006 & Supp. 2009)


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.


Erin K. Cho is a principal in the Fiduciary Responsibility practice group at Groom Law Group. Ms. Cho advises clients on matters involving ERISA’s fiduciary and conflict of interest rules. She advises asset managers, broker-dealers and investment bankers with respect to the many and varied services and financial products (including complex structured products and derivatives) they offer to U.S. pension plans. She counsels hedge funds and private equity clients on the consequences of accepting investments by benefit plan investors, as well as plan assets and prohibited transaction concerns arising in connection with venture capital investments and corporate transactions. She counsels plan sponsors on all aspects of ERISA fiduciary compliance, including plan governance, plan expense issues and the selection and monitoring of plan investment options. Ms. Cho also represents clients on exemption requests and regulatory initiatives before the U.S. Department of Labor’s Employee Benefits Security Administration.

Ms. Cho regularly speaks on pension investment matters, including as a co-chair of the Practicing Law Institute’s annual conference, “ERISA: The Evolving World”.  Ms. Cho received her B.A. in History from Yale University (magna cum laude, Phi Beta Kappa) and her J.D. from Harvard Law School (cum laude).


Erin Rose Miner is Director at Credit Suisse in New York heading the US regulatory compensation group as well as providing Executive Compensation coverage in the Americas.  Ms. Miner ensures the bank’s compensation plans and programs comply with US regulatory expectations as well as manages the execution of the compensation plans for employees based in the Americas. Ms. Miner received her undergraduate degree in Finance from the University of Maryland, College Park and received her law degree from New York Law School.


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.


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 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.


Robert J. Raymond is a partner based in the New York office of Cleary Gottlieb Steen & Hamilton LLP.

Mr. Raymond’s practice focuses on organizing and advising private investment funds, including fund formation for buy-out funds and other “alternative investment” funds. He also advises private investment funds in their investment activities and internal governance, including manager spin-offs, shareholder arrangements with portfolio companies and among consortium members, all forms of compensation arrangements, including co-investment arrangements and carried interest programs and “founders” arrangements. Mr. Raymond also advises clients on all aspects of executive compensation and corporate governance matters.

Mr. Raymond is distinguished by Chambers USA, The Best Lawyers in America, The Legal 500 U.S., Super Lawyers, Lawdragon and The Legal 500 U.S. as a leading lawyer. 

His recent experience includes acting as counsel to Credit Suisse in raising a $1 billion emerging markets credit opportunity fund; MBK Partners in raising its most recent fund; Deutsche Bank in connection with certain fund of funds; JPMorgan in connection with private equity conduit vehicles; Helios Capital in raising their second and largest pan-Africa investment fund to date; TPG in connection with several carry arrangements with industry experts and other individuals; and the spinoff of several managers from large financial institutions. Also counsel to Citigroup Alternative Investments in connection with various carried interest and co-investment programs and to Angelo, Gordon in connection with ERISA fund matters.

Mr. Raymond joined the firm in 1995 and became a partner in 2003. He received a J.D., summa cum laude, from New York Law School in 1994, and an undergraduate degree from the University of the State of New York, Regents College in 1989. From 1994 to 1995 he served as law clerk for the Honorable Roger J. Miner of the U.S. Court of Appeals, Second Circuit.

Mr. Raymond regularly speaks on private investment related topics, including at PLI and ALI-ABA seminars and the IBA/ABA International Conference on Private Investment Funds. He also co-authored an article in the International Finance Law Review entitled “Out of Sync” which compares the EU and US approaches to regulating private investment funds.

Mr. Raymond is a member of the Bar in New York.


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.


Michael Albano is a partner based in the New York office of Cleary Gottlieb Steen & Hamilton LLP.

Mr. Albano’s practice focuses on executive compensation and benefits matters, including disclosure, governance, taxation, design and negotiation of agreements and arrangements, as well as the executive compensation and benefits aspects of mergers and acquisitions; pension investment and ERISA fiduciary matters; private equity compensation; and employment law and related matters.

Mr. Albano is recognized as a leading employee benefits and executive compensation lawyer by Chambers USA, The Legal 500 U.S., The Best Lawyers in America and Super Lawyers.

Mr. Albano joined the firm in 2001 and became a partner in 2010. He received a J.D. degree, magna cum laude, from the Georgetown University Law Center in 2001, and an undergraduate degree, magna cum laude, from Duke University in 1998.

Mr. Albano is a member of the Bar in New York