Employee Benefits and Executive Compensation Law

Smith & Downey has extensive experience in counseling a wide variety of employers nationwide on employee benefits and executive compensation issues. The Firm also is counsel to a number of employee benefits and executive compensation consulting and administration firms, and occasionally counsels particular executive employees.

Smith & Downey regularly advises clients concerning employee benefits and executive compensation issues arising in connection with mergers and acquisitions and other corporate transactions. The Firm also has considerable experience in applying federal and state securities laws to employee benefit and executive compensation plans, including the preparation of SEC registration statements for equity compensation arrangements, counseling on registration exemptions and insider trading restrictions, advice on employer stock funds as investment options under tax-qualified plans, and similar services.

The Firm has extensive experience in the drafting of and operation of pension, profit sharing, 401(k), employee stock ownership, 403(b) and non-tax-qualified deferred compensation plans. The Firm also has extensive experience in obtaining governmental approval of new tax-qualified plans and of amendments to existing tax-qualified plans.

The Firm provides a full range of legal services regarding the compensation of executives of taxable, tax-exempt, governmental and church-related entities, including advice on the IRS intermediate sanctions rules and Form 990 requirements.

ERISA Practice

Smith & Downey represents a diverse group of clients, including pension and health and welfare benefit plans, plan sponsors, fiduciaries, financial institutions, investment advisors, insurance companies, and insurance professionals that render investment and other services to employee benefit plans. The Firm’s attorneys provide clients with a complete range of advice concerning the Employee Retirement Income Security Act of 1974 (“ERISA”), including ERISA’s fiduciary and prohibited transaction rules. Among other things, this advice includes selection and monitoring of plan service providers (including the review of service provider agreements), compliance with participant fee disclosure requirements and service provider disclosure requirements, and ERISA section 404(c) compliance.

The Firm’s attorneys regularly assist clients with ERISA reporting and disclosure requirements, including summary plan descriptions (SPDs), Form 5500s, summary annual reports (SARs), compliance notices and forms, and electronic delivery requirements.

Qualified Retirement Plans

Smith & Downey has substantial experience in the drafting and operation of pension, profit sharing, 401(k), employee stock ownership (ESOP), 403(b), and other deferred compensation plans. The Firm’s attorneys have prepared and worked with master and prototype retirement plans, as well as IRA, SEP and SIMPLE products for institutional clients.

In addition, the Firm counsels clients regarding ongoing administrative obligations under their plans (e.g., coverage and nondiscrimination testing, qualified domestic relations orders (QDROs), funding obligations, notice requirements, etc.).

The Firm routinely represents clients before the Internal Revenue Service (IRS), the U.S. Department of Labor (DOL), the Pension Benefit Guaranty Corporation (PBGC), and other government agencies on qualified retirement plan matters. The Firm routinely obtains determination letters, private letter rulings, exemptions, and other formal and informal guidance from these agencies.

Smith & Downey also assists clients in performing self-audits of their plans and helps clients remedy any errors using the Employee Plans Compliance Resolution System (EPCRS) and other “amnesty” programs maintained by the IRS, and the DOL’s Voluntary Fiduciary Compliance program.

Nonqualified Deferred Compensation Plans

Smith & Downey regularly drafts and implements nonqualified deferred compensation plans, supplemental executive retirement plans (SERPs), equity-based plans, and other incentive arrangements (e.g., stock options plans, phantom stock plans, etc.). The Firm helps its clients ensure that such plans comply with the applicable provisions of the Internal Revenue Code (e.g., 409A, 451, 457(b), 457(e)(11), 457(f), etc.), and provides tax advice on the design and operation of such plans.

Further, the Firm advises on the impact of the use of rabbi trusts, corporate-owned life insurance, split-dollar life insurance, and other arrangements for the funding of nonqualified plans.

Smith & Downey also assists clients in performing self-audits of their nonqualified plans and helps them remedy any errors using the available IRS correction programs under Code section 409A.

The Firm’s attorneys author one of the leading treatises on Nonqualified Deferred Compensation.

Health and Welfare Benefits

Smith & Downey has broad experience in all types of employee health and welfare benefit arrangements, and regularly provides clients with a complete range of advice concerning the Patient Protection and Affordable Care Act (i.e., the health care reform law).

The Firm regularly counsels clients on health plans (including insured and self-funded plans), welfare benefit plan wrap documents, section 125 “cafeteria” and flexible benefit plans, voluntary employee beneficiary associations (“VEBAs”), multiple employer welfare benefit arrangements (“MEWAs”, “METs” and “419 Trusts”), and other welfare benefit arrangements (e.g., medical and dental plans, disability plans, life insurance plans, retiree welfare plans, flexible spending arrangements (FSAs), health savings accounts (HSAs), health reimbursement arrangements (HRAs) etc.).

The Firm advises clients on the impact of the nondiscrimination requirements under Internal Revenue Code section 105(h) and section 125, and the health reform law, among others. Smith & Downey routinely advises clients on: (1) compliance with all facets of HIPAA, HITECH, GINA, COBRA, and the anti-discrimination requirements for employee health and welfare benefit arrangements, (2) the options available for compliance with FASB standards such as FAS106 and FAS112, (3) the effect of the Americans with Disabilities Act (ADA), the Older Workers Benefit Protection Act (OWBPA), and the Family and Medical Leave Act (FMLA) on employee benefit plans, (4) the Affordable Care Act (PPACA), and (5) the myriad of other federal laws impacting health and welfare benefit arrangements.

Employee Benefits Litigation

Smith & Downey is able to use its considerable employee benefits experience to provide highly sophisticated representation of employers, plans, plan administrators, third party administrators and other service providers in claims arising under ERISA, including claims involving benefit disputes, withdrawal liability from multiemployer benefit plans, breach of fiduciary duties claims, and other benefit-related matters.

Agency Investigations

The Firm represents clients in resolving investigations by, and conflicts raised before, various governmental agencies, including the Internal Revenue Service (“IRS”); the Employee Benefits Security Administration (“EBSA”); and the Department of Labor (“DOL”).