Proskauer Benefits Brief: Legal Insight on Compensation & Benefits

Last month, Proskauer secured a unanimous victory at the U.S. Supreme Court on behalf of the Trustees of the IAM National Pension Fund. In a 9-0 decision authored by Justice Ketanji Brown Jackson, the Court resolved a circuit split concerning how multiemployer pension plans calculate the liability of withdrawing employers.   In this episode of the Proskauer Benefits Brief, Neil Shah is joined by J...

In this episode, Justin Alex and Adam Scoll discuss the U.S. Department of Labor’s recently issued proposed regulation regarding ERISA fiduciary duties in selecting designated investment alternatives offered under participant-directed defined contribution plans, such as 401(k) plans. They examine the parameters of the proposal’s safe harbor, which reinforces ERISA’s focus on process over outcomes...

In the next episode of our ongoing series on withdrawal liability, Neil Shah and Justin Alex are joined by Adam Scoll to explore how the withdrawal liability of a private investment fund’s portfolio company can extend to the fund itself (and potentially others). They discuss the “trade or business” and “common control” tests, the impact of the Sun Capital and Longroad decisions, and how fund struc...

In the second part of their discussion, Neil Shah  and  Rob Projansky take a closer look at what happens when a Section 4204 transaction doesn’t go as planned. Together, they explore how courts interpret the statute’s requirements, the risks that arise when parties miss key steps, and the potential consequences for both buyers and sellers. They also discuss practical strategies for managing these...

In this first installment of a two-part conversation, Neil Shah and Rob Projansky unpack one of ERISA’s most talked-about “cheat codes”: Section 4204. They explain how a properly structured asset sale can avoid triggering withdrawal liability, why the rule exists, and the three core pillars that must be satisfied, including contribution continuity, secondary liability, and bonding requirements. Th...

In the second part of their discussion on bankruptcy and withdrawal liability, Neil Shah and Daniel Desatnik examine what plans can recover on withdrawal liability claims in bankruptcy and how debtors may push back. Listen as they cover interest, fees and present value calculations, administrative and priority disputes, distressed employer defenses, third-party releases and successor liability ris...

In this first episode of a two-part conversation, senior counsel Neil Shah is joined by partner Daniel Desatnik of our Bankruptcy and Restructuring Group to examine how withdrawal liability claims change when bankruptcy enters the picture. Together, they discuss the automatic stay, arbitration versus bankruptcy court, proof of claim strategy, priority and administrative expense issues, and the pra...

What happens at the bargaining table may lead an employer to close a facility, exit a line of business, go non-union, or opt for an entirely different compensation mix for its employees. All of these can trigger the employer's obligation to pay withdrawal liability. In this episode of our multi-part series on withdrawal liability, senior counsel Neil Shah and partner Josh Fox unpack the ways in wh...

In the second part of a two-episode segment, senior counsel Neil V. Shah and partner Anthony Cacace walk through the five additional federal pathways that can extend withdrawal liability beyond the withdrawing employer. Together, Neil and Anthony cover single employer, alter ego, successor, evade-or-avoid, and combined theories of liability, explaining how plans build their cases to hold others li...

Withdrawal liability can reach far beyond the withdrawing employer. The most common way a non-employer becomes liable is through controlled group liability. In the first episode of this two-part series, senior counsel  Neil Shah  and partner  Anthony Cacace  explain how controlled group rules work, why they often catch businesses off guard, and how liability can extend across affiliated entities,...

In the second episode of their multipart series on withdrawal liability, senior counsel  Neil Shah  and partner  Justin Alex walk through the various deadlines that apply in the withdrawal liability lifecycle, from a plan’s initial notice and demand to an employer’s review, arbitration, and potential litigation. They explain why these timing rules matter, how they affect employers, plans, and actu...

Next week, the Supreme Court will hear oral argument in its first withdrawal liability case in 30 years. In this first installment of a multi-part series, senior counsel Neil Shah and partner Justin Alex explain what withdrawal liability is, why it matters, and the key considerations to look out for going forward.

In this episode of The Proskauer Benefits Brief, David Teigman , partner in the Tax Department and a member of the Employee Benefits & Executive Compensation Group,  Josh Apfelroth , partner in the Private Equity and Mergers & Acquisitions Group and  Nick LaSpina , senior counsel in the Employee Benefits and Executive Compensation Group discuss shareholder activism in the public company co...

In this episode of The Proskauer Benefits Brief,  David Teigman , partner in the Employee Benefits and Executive Compensation Group, Simon Sharpe , partner and member of our Private Equity and Mergers & Acquisitions groups and Nick LaSpina , senior counsel in the Employee Benefits and Executive Compensation Group discuss rep and warranty insurance (RWI) in the mergers and acquisitions context. The...

In this episode of The Proskauer Benefits Brief, Proskauer partners Ira Bogner and Adam Scoll and law clerk Tanusha Yarlagadda discuss the Department of Labor’s final ESG rules issued on November 22, 2022, and how those rules affect the consideration by ERISA fiduciaries of environmental, social, and governance or “ESG” factors when making investment decisions and exercising shareholder rights, su...

In this episode of The Proskauer Benefits Brief, partner  David Teigman , senior counsel  Nick LaSpina , and special international labor & employment counsel Nicola Bartholomew , discuss differences between asset sales in the US and the UK, with respect to transfers of employees.  In short, there are significant differences that are not necessarily intuitive to US practitioners.  In the US, partie...

In this episode of The Proskauer Benefits Brief, Proskauer partner  David Teigman , senior counsel Nick LaSpina , and special guest Michelle Garrett , a principal at the compensation consulting firm Semler Brossy, discuss employee retention. It seems like there is an article almost every day talking about the “great resignation.”  In a nutshell, there have been far more job transitions recently th...

In this episode of The Proskauer Benefits Brief, Myron D. Rumeld , partner and co-chair of Proskauer’s ERISA Litigation group and senior associate Tulio D. Chirinos , review the current state of affairs with respect to the litigation challenging the fees charged and investments offered in defined contribution plans; and The Supreme Court’s recent decision in Hughes v. Northwestern University where...

This episode is the final installment of our three-part series on a new special financial assistance program created by the American Rescue Plan Act of 2021 for troubled multiemployer plans and the interim guidance issued by the Pension Benefit Guaranty Corporation regarding the program. Be sure to listen as Rob Projansky  and  Justin Alex cover the special rules that apply to plans that receive t...

This episode of The Proskauer Benefits Brief is the second of our three-part series analyzing the Pension Benefit Guaranty Corporation (PBGC) guidance on the new special financial assistance program for troubled multiemployer pension plans that was created by the American Rescue Plan Act (ARPA).  Tune in as Rob Projansky  and Justin Alex  dig into more details on the guidance and the program.

This episode of The Proskauer Benefits Brief is the first of our three-part series analyzing the Pension Benefit Guaranty Corporation (PBGC) guidance on the new special financial assistance program for troubled multiemployer pension plans that was created by the American Rescue Plan Act (ARPA).  In this initial episode, partner Rob Projansky and senior counsel Justin Alex cover the basic contours...

In this episode of the Proskauer Benefits Brief, partner Robert Projansky and special guest Garrett Fenton, senior attorney at Microsoft Corporation, discuss cyber theft of 401(k) plan accounts.  Tune in as we discuss why 401(k) plans are vulnerable to cyber security breaches, what kinds of cyber security frauds we are seeing in 401(k) plans, evolving litigation on these issues and steps plan spon...

For a number of ERISA, tax and other regulatory reasons, it may be desirable for the manager or sponsor of an investment fund or other structure to utilize what is often referred to as a plan asset "hard-wired" conduit feeder.  Tune in to this podcast as partner  Ira Bogner  and senior counsel  Adam Scoll  discuss more about these structures, and the advantages they can provide.   

In this episode of the Proskauer Benefits Brief, partner  Ira Bogner  and senior counsel  Adam Scoll  discuss VCOC "Management Rights."  For VCOC compliance purposes, "management rights" are contractual rights directly between an investing entity and an operating company by which the investing entity can substantially participate in, or substantially influence the conduct of, the management of the...

In this episode of the Proskauer Benefits Brief, partner Ira Bogner and senior counsel Adam Scoll discuss when and how an ERISA plan fiduciary may consider “ESG factors,” (i.e., environmental, social and governance factors) when investing ERISA plan assets.  As these circumstances are fairly limited, we advise ERISA plan fiduciaries to proceed with caution in this regard.  Tune in for more importa...