ERISA and Employee Benefits | Fennemore Craig
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Overview

Our employee benefits practice group offers more than 100 years’ experience in advising clients on all aspects of employee benefits, and brings first chair experience to clients’ employee benefits needs at highly competitive billing rates. Our senior group members are active and recognized in both the local and national employee benefits communities and have developed significant contacts with the Internal Revenue Service and, the United States Department of Labor, locally, regionally, and nationally.

Cindy Shupe (practice group chair) is Chair of the IRS Pacific Coast TE/GE Council which is composed of private practitioners and serves as a sounding board to the IRS on matters related to retirement policy, specific tax issues, procedures and IRS enforcement initiatives affecting employee benefits.

David Heap is a former co-chair and member of the program planning committee of the Western Benefits Conference, jointly sponsored by the Western Pension & Benefits Council and the American Society of Pension Professionals and Actuaries, which arranges the program, topics, and speakers for an annual education conference relating to employee benefits. He is a former president of the Phoenix chapter of the Western Pension & Benefits Council and former member of its steering committee

Gail Goodman spent most of her career at a large public accounting firm giving her a wide range of experience in the design, implementation, and administration of various employee benefit and executive compensation matters including both qualified and non-qualified deferred compensation plans for publicly traded and privately held companies and their governing boards, as well as for governmental employers.

Ryan Curtis has handled numerous Employee Retirement Income Security Act (ERISA) litigation matters regarding benefit disputes, unpaid employer contributions, and multiemployer plan withdrawal liability matters. He advises and defends plans during audits by the IRS and the Department of Labor. He helps plans comply with important federal laws including ERISA, the Affordable Care Act (“ACA”), and Health Insurance Portability and Accountability Act (“HIPAA”). He assists plans with compliance failures and submitting correction applications to the IRS.

Kristi Lundstrom consults with plan sponsors and others with respect to plan design, corrections, and administration, and assists with applications to the IRS, for both plan corrections and terminations. She is a board member of the Phoenix chapter of the Western Pension & Benefits Council, which organizes educational meetings and conferences relating to employee benefits issues. 

Our employee benefits practice routinely advises clients on issues arising under ERISA and tax implications relating to various benefits found in the Internal Revenue Code (“Code”). Our practice has a range of experienced attorneys and paralegals so that we can properly staff even the most complex benefit matters in a cost-effective manner and provide excellent service. Our employee benefits practice covers all of the client needs set out below.

  • Correction Programs - EPCRS - Self Correction, VCP; DFVCP

    With the recent limitations on the IRS’s long-standing favorable determination letter program, it is more important than ever to ensure an employer’s qualified plans are written and operated in compliance with ERISA and Tax Code requirements. We provide periodic compliance reviews and help clients implement appropriate and timely self-correction procedures. Further, we advise plans on failures that cannot be self-corrected and assist with the preparation and submission of applications to the IRS’s Voluntary Compliance Program (“VCP”) and the DOL’s Voluntary Fiduciary Compliance Program (“VFCP”). We have had consistent success in crafting and negotiating non-standard corrections under VCP that are carefully tailored to a specific plan sponsor and situation and that result in significant cost savings to the plan sponsor. We also assist in plan Audit-Cap scenarios. 

  • Employee Benefits – Business Transactions

    We provide counsel regarding all aspects of employee benefits in merger and acquisition transactions, including 280G analysis and calculations when necessary from either the buyer or seller side in both equity and asset purchase deals. Our team has a structured approach to employee benefits due diligence in which, specific practice group members are tasked with reviewing or providing the documents and data relative to the specific employee benefit program under review. We review and advise with a mind toward the best interests of the client and their side of the transaction. Due to our many years of experience, we recognize and quickly respond to the urgent time constraints these deals typically require. When problems are identified, we outline the potential corrective actions to remediate the issues, the required timing, and advise clients regarding potential exposure in delaying correction. We routinely work with companies and their third-party benefits providers (insurance brokers, trustees, and third party record-keepers) on the post-merger integration of their various benefit plans, including qualified plans, welfare and fringe benefit arrangements, equity compensation, and non-qualified deferred compensation. When a qualified plan will be terminated, we prepare and file final favorable determination letter applications on their behalf and any accompanying VCP applications.

  • Equity Compensation

    Our group has extensive experience in the design, documentation, compliance, implementation and ongoing administrative overview of equity compensation arrangements, for both publicly-traded (including 162(m) considerations) and private clients. We also implement these types of programs for both corporations and entities taxed as flow through entities. We assist clients with the design and implementation of ESPP (both qualified and non-qualified); Option Plans (ISO and NQSO); Restricted Stock; Restricted Stock Units; Stock Appreciation Rights (standalone or tandem), and a variety of other equity related structures. We facilitate client compliance with compensation disclosure and analysis reporting when requested.

  • Executive Compensation

    Our practitioners work closely with our labor and employment attorneys in designing or reviewing and advising on various aspects of executive employment agreements, change in control agreements, various equity awards, and severance agreements.

  • Information Reporting

    Our group advises clients regarding the information reporting requirements associated with retirement plans, welfare plans, severance plans, non-qualified deferred compensation arrangements, ACA and successor employer issues, and advise on the application of the special timing as well as state and local tax withholding requirements associated with various components of compensation. We also advise clients on 83(b) issues and deductibility of compensation. 

  • IRS and Department of Labor Audit Defense; Other Governmental Interactions

    We defend and advise plans during governmental audits and are experienced in representing employers on qualified plan and employee benefit matters before both local and national offices of the Internal Revenue Service, the U.S. Department of Labor, as well as the Pension Benefit Guaranty Corporation. We regularly advise clients concerning fiduciary and prohibited transaction issues. We also advise employers regarding the implications and liabilities involved with participation in multiemployer union pension plans and multiple employer plans.

  • Non-Qualified Deferred Compensation

    Our practitioners have extensive experience in designing and documenting non-qualified deferred compensation plans of all types, including 457(b) and 457(f) plans which are unique to non-profit and governmental entities. We also work with clients in correcting plan failures under these arrangements and minimizing related financial exposure by implementing administrative policies and controls to minimize any plan errors.

  • Qualified Plans

    Our practice members have extensive experience in preparing, analyzing, designing, and amending plan documents and providing counsel with respect to, defined benefit, cash balance, section 401(k), profit sharing, money purchase pension, employee stock ownership plans (“ESOP”), multiemployer,  and multiple employer plans qualified under Code Section 401(a) as well as plans authorized under Code Section 403(b). In addition to plan documents, we review and provide advice on third party-provided ancillary documents including trusts, service agreements, required notices of all types, and administrative policies and forms.

  • Welfare and Fringe Benefits

    Our practitioners work with clients in the design, documentation, and compliance with requirements for medical, dental, cafeteria, life insurance, and flexible benefit arrangements whether they are fully-insured, self-funded, or funded through a voluntary employee benefits association (“VEBA”). We advise clients on ACA compliance requirements including coverage and reporting and on the provisions of ACA that impact small employers’ provision of benefits and the means to stay compliant. We also advise clients on satisfying COBRA responsibilities and the proper handling and disclosure of Protected Health Information under HIPAA.

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