ERISA

Overview

Employee benefit plans and the laws that govern them are inherently complex and constantly evolving. By combining substantive expertise in employee benefits laws with the talents of experienced litigators and transactional attorneys, Arent Fox provides comprehensive advice to meet the business objectives of our clients.

ERISA Litigation Practice

Our ERISA litigation practice offers a team approach to employee benefits litigation that combines the unparalleled skills of lawyers with nationally recognized technical expertise, with tough litigators who employ creative “outside the box” thinking to develop successful litigation strategies. Even our opposing counsel have described us as “formidable.”

We have expertise in all aspects of ERISA, as well as the Internal Revenue Code, the Bankruptcy Code, COBRA, the Family and Medical Leave Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and other laws governing employee benefit plans. We have substantial experience advising on and litigating a wide variety of benefit issues arising under these statutes in connection with defined benefit pension plans (including cash balance plans), defined contribution pension plans, and health and welfare plans. And we are particularly adept at handling complex benefit issues arising both inside and outside of bankruptcy in the airline, automotive, and steel and other heavy metals industries.

By evaluating the client's strategic goals in these cases at the outset, and continually throughout the case, our litigators always have their “eye on the prize.” As a result, we are able to navigate our clients through complex litigation efficiently and effectively. In the end, we regularly secure favorable outcomes for our clients, either through judgments or settlements. And we often do so more quickly and with better results than they had expected.

Led by a former general counsel of the Pension Benefit Guaranty Corporation (PBGC), the ERISA litigation team has successfully defended employers, employee benefit plans and fiduciaries in federal trial and appellate courts throughout the country. Our ERISA litigators have also briefed and/or argued more than a dozen cases before the United States Supreme Court.

Our recent cases include:

• Achieving a precedent-setting victory in a class challenge to the cash balance pension plan of a major defense contractor, in which the plaintiffs alleged that the plan's benefit formula discriminated on the basis of age in violation of ERISA.
• Defending a major agricultural company and its cash balance pension plan in a class challenge to the plan.
• Defending one of the world's largest printing companies in a class challenge to its cash balance pension plan.
• Defending a global specialty chemicals and materials company and the fiduciaries of its 401(k) plan in two class actions alleging breaches of fiduciary duty in connection with the plan's investment in employer stock.
• Defending a major diversified technology and manufacturing firm in a class action alleging that the fiduciaries of the company's 401(k) plan breached their ERISA duties by investing in guaranteed investment contracts of an insurer that subsequently became insolvent.
• Achieving favorable settlements and litigation results as outside counsel to the PBGC in bankruptcy proceedings and related litigation.
• Defending a major coal company in a multiemployer pension plan arbitration proceeding for withdrawal liability, leading to a settlement for less than half of the amount demanded.
• Successfully defending employers in actions alleging that they terminated employees to prevent them from becoming eligible for retirement benefits, in violation of ERISA.
• Successfully defending employers and plans in actions for benefits under employee benefit plans.
• Representing employers seeking to terminate their pension plans before the PBGC.
• Assisting employers in obtaining waivers of the minimum funding obligation to their pension plans from the Internal Revenue Service (IRS).
• Representing employers in negotiations with PBGC arising from its “early warning program.”
• Representing debtors, secured creditors, and official committees of unsecured creditors in dealing with PBGC issues in bankruptcy.

ERISA Transactional Practice

Arent Fox's transactional ERISA lawyers regularly advise clients on benefit issues related to ERISA and other statutes that regulate Employee Stock Ownership Plans (ESOP's), 401(k) plans, defined benefit pension plans, health and welfare plans (including COBRA and HIPAA), executive deferred compensation programs (Section 409A of the Internal Revenue Code), severance programs and fringe benefit plans. We design and draft all types of employee benefit plans, and advise both for-profit and nonprofit clients on compliance rules.

We also develop practical solutions for fixing broken plans, particularly when a client has been sold an “off-the-shelf” program that does not meet its business objectives, and we have been very successful in negotiating practical solutions with the IRS when employers have discovered operational problems with their benefit plans.

We have expertise in the Internal Revenue Code, applicable Department of Labor regulations and all other laws relating to employee benefits. We normally handle pension and welfare benefit plan matters on behalf of employers, plan fiduciaries, and sometimes the plans themselves. Arent Fox serves as outside counsel to sponsors of many large and small multiemployer, multiple employer and single-employer plans. We also serve as plan counsel to a number of pension and health plans, some of them governmental plans.

Some representative activities include:

• Advising clients with respect to employee benefit issues in the context of mergers, acquisitions and office or plant relocations, such as plan coverage issues during the transition period following an acquisition and/or plan partial termination issues, and undertaking due diligence with respect to the target entity's benefit programs.
• Attending trustee meetings and providing advice on questions raised by the executive management team, trustees, plan administrators, plan actuaries, plan accountants, investment advisors and other service providers concerning the administration of the plan.
• Advising clients on strategies for permitting employees to voluntarily retire through the implementation of a subsidized early retirement or “window” program.
• Advising clients on the impact of the “Golden Parachute” rules and compensation deduction limitations in the context of developing executive incentive programs.
• Drafting descriptive materials with respect to the plans of a major trade association, including preparing information periodicals that are regularly sent to members concerning developments in the employer's program and general developments in the law that may affect plan participants.
• Advising clients on the federal and state law requirements related to multiple employer welfare arrangements (MEWAs), the funding of welfare arrangements (including voluntary employees' beneficiary associations or VEBAs), the fiduciary and prohibited transaction implications of receiving income for the endorsement of health insurance programs and, as our clients have moved into programs with more extensive managed care aspects, the structuring of plans and service provider contracts so as to minimize potential sponsor liability.
• Assisting clients with the implementation of nonqualified retirement programs to provide highly compensated employees with a subsidy to make up for the “lost” benefits resulting from the various Internal Revenue Code limitations on the amount of benefits payable under tax-qualified programs, as well as with other executive compensation vehicles subject to the complex rules under Section 409A (including “Rabbi Trusts”).
• Assisting employers with the development of appropriate disclosure and education programs to deal with the challenges of employee-directed investments under Section 401(k) programs and compliance with Section 404(c) of ERISA.
• Assisting clients with requests for proposals and related advice concerning changes in (or conversions involving) third party service providers and investment vehicles.