McDermott Will & Schulte, a global law firm

Your employment decisions can create both opportunity and risk, fueling your business growth and impacting your reputation. Adopting policies to build a strong company culture and ensure compliance with complex laws and regulations is critical to your success—and requires attention, agility and decisive action. Whether you need forward-thinking legal guidance or litigators equipped to handle your most complex workforce-related labor and employment matters, you can turn to us for creative and pragmatic solutions, sector-specific knowledge and a proven litigation track record.

As your trusted advocate, we provide clear, strategic counsel and present solutions with your business objectives in mind. To help you anticipate emerging workplace issues and develop strategies to mitigate potential litigation risks, we make it a priority to proactively identify trends in your industry. When challenges do arise, we employ a collaborative process that allows us to assemble agile legal teams around the globe well suited to address your most pressing employment issues in any jurisdiction, from C-Suite and Board guidance to bet-the-company matters.

We work with clients in a variety of industries, including food and beverage, the gig economy, health, industrials, life sciences, media and entertainment, private client, professional and financial services, retail, technology and transportation and logistics. We have particular skill and experience in the following areas:

• Class Action Litigation
• Employee Classification
• Labor
• Pay Equity, Workplace Harassment & C-Suite Advisory
• Public Accommodations
• Trade Secret, Restrictive Covenants & Whistleblower Disputes
• Transactions & Executive Contracts

Because we’re committed to your success, we make it our business to know your business. As a result, we handle the heavy legal lifting, protecting your organization’s most critical assets—people and reputation—and allowing you to focus on achieving your core objectives. Our approach is direct, decisive and tailored to your specific labor and employment needs across all jurisdictions worldwide.

The Employee Retirement Income Security Act (ERISA) is one of the nation’s most complex pieces of legislation. At the same time, retirement benefits account for a significant portion of employers’ personnel-related expenditures. Consequently, ERISA disputes are among the most frequently litigated and financially risky areas of employee benefits law. To minimize the likelihood of disputes and to quickly resolve cases in a manner that reduces or eliminates potential liabilities, clients need legal advisors with deep and diverse experience in the application of this often misunderstood law.

With one of the most sophisticated full service employee benefits practices in the world, our lawyers are not only sought out for their knowledge and in-depth counseling capabilities and risk mitigation strategies, but also their strength to litigate complex ERISA and other benefit plan issues. By having a trial team that has litigated hundreds of matters involving ERISA and related benefit plan claims and investigations, we have invested in building out one of the few teams in the US that understands the nuances surrounding these cases, the best tactics to address them and the compliance strategies to prevent future litigation challenges.

Whether it’s representing an employer in a Department of Labor investigation, defending a plan sponsor in an ERISA class action, advising corporate fiduciaries on a routine compliance issue or counseling a plan administrator on a benefits dispute, our litigators have seen it all. By having a litigation team focused solely on these types of claims who work hand-in-hand with our market leading employee benefit counselors, we are plugged into the latest trends and strategies that reduce the costs that our clients need to invest in addressing these complex litigations. Our number one priority is to help our clients prevent litigation and by doing so, we put a great emphasis on making sure we are ahead of the curve on the latest developments so that we can better prepare our clients for developing threats.

Just as critical as the experience that our employee benefit litigators bring to each engagement on substantive issues is the trial experience these individuals also possess. We prides ourselves on preparing all cases as if they will be litigated through trial, ensuring that we have a pristine trial record throughout the life of matter so that we are prepared to win for our clients during any stage of a case, administrative hearing or government investigation. As noted by Chambers, Legal 500 and US News Best Lawyers, our clients have lauded the positive impact of having a team that is dedicated to solving ERISA and employee benefit issues combined with a courtroom track record that positions our clients for swift and effective resolutions. Chambers USA further praised the team as being “adept in acting for clients with respect to the full spectrum of litigation and administrative proceedings connected to benefits plans.”

Beyond our courtroom and counseling strengths, our litigators have substantial experience working with our clients to determine and secure appropriate insurance coverage should a litigation or investigation come to the surface. By having longstanding relationships with most of the major carriers and being on many of their panels, our full service employee benefits team has a tremendous amount of experience reviewing policies, negotiating favorable terms and working with a carrier should a policy need to be enforced.

Our ERISA lawyers have significant experience litigating claims concerning:

• Fiduciary Duty
• Health Benefits
• Plan Termination
• Severance Pay
• ESOP
• Department of Labor Investigations

Regulatory Controversies

We represent clients before federal and state agencies and regularly negotiate effective settlements to a broad range of ERISA-related disputes. Among recent matters, we successfully challenged an assessment of withdrawal liability under the Multiemployer Pension Plan Amendment Act (MPPAA) upon the sale of a company’s assets, resulting in a favorable ruling by the US Court of Appeals for the Seventh Circuit, and defended a “parent” company in federal court against claims involving the MPAA obligations of a bankrupt affiliate, settling the matter for a fraction of the amount claimed. We also represented the former chairman of an international biotechnology manufacturer a dispute involving alleged violations of the Foreign Corrupt Practices Act.

Appellate

Our ERISA litigation team includes members of our highly regarded appellate group. Together, we have successfully handled hundreds of appeals at every level of federal and state appellate courts. Among the numerous ERISA appeals that we have argued and defended, we secured a victory before the US Court of Appeals for the Second Circuit in high-profile litigation for Liberty Mutual Insurance Company against the State of Vermont, challenging a state regulation requiring the disclosure of individuals’ private and confidential medical claims history from health insurers within the state. In another matter, we successfully defended a class action, challenging exclusion of certain pay from pension calculations for 18,000 retirees, before the US Court of Appeals for the Seventh Circuit.

Claims Disputes

We represent employers, sponsors, insurers, service providers, plan administrators, trustees and other plan fiduciaries in a broad range of ERISA claims disputes involving employee and retiree health, pension and other benefits. Among the broad range of issues under dispute, we have defended clients in matters involving severance-plan terms, age discrimination in cash-balance pension plans, stock investments and business performance, plan liquidity and plan asset values, reductions and terminations of retiree medical benefits, blackout periods, plan administration and plan eligibility. We represent clients in federal courts across the country and negotiate favorable settlements with government agencies such as the Pension Benefit Guaranty Corporation.

Employee stock ownership plans (ESOPs)—at inception, termination and on an on-going basis—require expertise in a wide range of legal specialties. Our ESOP lawyers are an inter-disciplinary team from across the country with access to a deep bench of more than 1,000 Firm lawyers experienced in corporate law, corporate finance, environmental law, securities regulation, lending, litigation, labor and employment law, real estate, estate planning, tax planning, and related areas. We address all aspects of ESOP transactions and on-going ESOP administrative compliance, as well as required fiduciary analysis and review. Our group has been engaged to provide counsel in some of the largest ESOP transactions that have occurred in the last decade, and continues to provide guidance for a wide variety of clients on a full range of situations and across multiple industries.

We represent individual trustees, institutional trustees, ESOP companies, lenders, selling shareholders and companies buying and selling legacy ESOPs in corporate transactions. We have seen it all. At the core of our ESOP Group is a team of lawyers who decided early in their careers to dedicate themselves to ESOP law and have taken the time and effort to maintain a practice that is well-versed in the evolving requirements presented by an ESOP. Our lawyers have represented many of the leading lending institutions in the United States in both large and small ESOP loans. Our Firm also serves as regular counsel on a continuing basis to most of the leading independent fiduciaries for ESOPs, including institutional and individual ESOP trustees. Our lawyers have played important roles in the development of ESOP companies through transactional and on-going Employee Retirement Income Security Act of 1974 (ERISA) advisory services. Our lawyers have also played integral roles in the development of ESOP law and legal precedent through participation in Department of Labor and Department of Treasury rulemaking and ERISA litigation.

The breadth and depth of our ESOP practice allows us to deliver comprehensive legal services in a cost-effective manner. We have developed the necessary documents and a wealth of research on the more esoteric issues affecting ESOPs. By drawing on these resources, we are able keep costs to a minimum, allowing for an efficient planning opportunity to the benefit of our clients.

Strong businesses require strong leadership. To help organizations recruit, hire and retain key leadership and senior managers, our Firm provides high-quality, client-tailored advice on all aspects of executive compensation, including benefits, tax, securities, labor, and litigation issues. Our executive compensation team draws on experienced lawyers from our benefits, corporate, tax, private client, and other departments to provide seamless, coordinated advice that meets the demands of today’s global workforce.

We understand the needs of employers and industry groups, and take into account the political, economic and social issues that drive legislators and regulators who develop and enforce executive compensation policy. Our clients include Fortune 500 companies, public companies of all sizes and privately held entities within the banking, financial services, health, technology, manufacturing, pharmaceutical, utilities, insurance, and other industries. Our group includes former Internal Revenue Service officials who participated in many of the rulings and developed a number of regulations that affect executive compensation. Members of our practice also hold key leadership positions within national and state bar associations.

We work with clients to develop executive compensation strategies that attract, retain and reward key executives while also protecting the best interests of shareholders. In light of increasing public scrutiny and the changing legal environment, corporate governance issues are an important consideration when establishing internal processes and structures. We provide effective guidance on change-in-control protection, compensation committee governance, executive employment agreements, equity compensation and stock options, incentive compensation, non-qualified deferred compensation, public disclosures, Section 16 reporting, and split-dollar life insurance.

Employment Agreements

Our executive compensation lawyers regularly negotiate and draft employment agreements that meet the needs of employers and executives. We draw on our deep knowledge of industry best practices and standards, and have broad experience representing public companies and privately held businesses in the financial services, utilities, health care, technology and manufacturing sectors. We help clients address complex legal and business considerations relating to executive non-competition restrictions, confidentiality provisions, dispute resolution procedures, and liquidated damage clauses, as well as severance and deferred compensation obligations that may represent significant financial commitments in the context of business acquisitions, mergers, divestitures, and changes in control.

Equity Compensation

We regularly assist public, privately held and limited liability companies and other clients in designing equity compensation arrangements that meet key incentive and retention goals. We coordinate solutions to a range of tax, securities and accounting considerations, including qualifying for incentive stock options and Section 162(m) deduction rules for named executive officers, registering equity investments for public companies, securing exemptions for private companies, and ensuring accurate compensation expense reporting. Our experience includes all forms of stock options, restricted stock, stock appreciation rights, phantom stock, deferred issuance stock awards, stock purchase programs, use of equity derivatives, and conversion of equity compensation into deferred compensation. We also advise clients regarding use of equity compensation for estate planning, clawback provisions for non-competes, and divorce decrees.

Multinational Executives

To help employers address the complicated challenges that arise when providing benefits to executives in different countries, our executive compensation team provides full-spectrum guidance on international and domestic tax, employment, labor, and privacy laws. We work with clients to harmonize compliance between existing practices in the executive’s home country and foreign laws that are at times inconsistent with domestic requirements. Our lawyers negotiate and establish special arrangements for retirement benefits, social security coverage (totalization agreements), equity compensation and other benefits, and counsel multinational companies on issues involving stock option grants, approvals for deferred compensation, employment agreements involving multiple jurisdictions, and foreign tax deductions under Section 404A.

Non-Qualified Deferred Compensation

We help clients structure and establish a range of non-qualified deferred compensation plans that help executives accumulate meaningful retirement benefits beyond those allowed under more restrictive, traditional tax-qualified profit sharing and pension plans. We address risks such as changes in control, help clients ensure compliance with ERISA and constructive receipt rules, expanded coverage for employees, and emerging tax regulations, and influence the development of legislation, including recent proposals to restrict executive access to deferred compensation funds and the means by which a company may fund payment for future plan benefits. Our lawyers also advise tax-exempt clients on Section 457 limits and other federal tax rules that apply to exempt organizations.

SEC Compliance

We help clients ensure compliance with the full range of Securities and Exchange Commission rules that affect executive compensation, perquisite and personal benefits arrangements, including required disclosures and reports (such as Form 10-K and Form 8-K reports and registration, proxy and information statements), related-person transactions and corporate governance requirements. We work with clients to identify and establish disclosure teams, help educate team members, executives, directors and officers on disclosure requirements and timeframes, conduct inventories of perquisites and compensation, evaluate board independence, and review and modify committee charter amendments, policies for stock option and other equity grants, and related processes.

Split-Dollar Life Insurance

Public companies, privately held businesses and tax-exempt organizations that provide split-dollar life insurance to their executives must ensure compliance with a number of Internal Revenue Service rules and related federal and state legislation. Together with experienced lawyers from the Firm’s tax, insurance and estate-planning practices, our employee benefits lawyers provide sophisticated split-dollar planning to a number of publicly held and other clients. We help clients evaluate alternatives for premium payments and to personal loan prohibitions, offer diagnostic reviews of corporate split-dollar programs, including group-carve out arrangements, SERP-swaps and “equity” split-dollar life insurance arrangements, and help identify new opportunities as regulatory requirements and financial markets evolve.

Health and welfare benefit plans are increasingly becoming a key component of an employer’s overall compensation, retention and recruitment package. Designed to attract top candidates and retain key executives and employees, health and welfare benefit plans also make up a significant portion of a business’ overall human resources-related expenditures. This balancing act is made even more challenging as regulatory oversight and legislative requirements continue to expand under the Affordable Care Act and other federal and state legislation applicable to group health plans.

Our health and welfare benefits lawyers have deep knowledge and experience advising clients on the design and administration of health, welfare and other fringe benefit plans. We counsel employers, health plans, vendors, insurers and plan fiduciaries, assisting them with navigating the complex requirements of federal and state laws that impact benefits.

Our interdisciplinary team is skilled at helping clients identify and navigate trends in employee benefits and healthcare reform, develop strategies to overcome new or potential legal hurdles, manage the growing legal complexity associated with the design and administration of health, welfare and other fringe benefit plans, and address the issues that arise from major business transactions.

Clients turn to us for our vast knowledge and capabilities to address the full range of issues, from conducting audits to the reviewing and guiding of plan design strategy, assisting with documentation and funding, negotiating vendor-service agreements, advising on fiduciary issues, and representing clients before government and regulatory agencies to negotiate favorable outcomes.

Our experienced ERISA lawyers help employers, plan administrators and other fiduciaries correct prohibited transactions and fiduciary breaches, ensure compliance with the numerous reporting obligations and notice requirements, review third-party administrator and other service-provider agreements, and draft summary plan descriptions and other participant communications.

Affordable Care Act (ACA)

We work closely with clients to help them understand, navigate and comply with the sweeping changes brought about by the Affordable Care Act (ACA). From employer shared responsibility requirements and employer reporting to ACA tax and reporting obligations, we advise on the opportunities and challenges facing employers. We understand the law and guide clients regarding benefit design strategies, establishment of onsite employee clinics, development of wellness, prevention and disease management programs and telehealth initiatives, direct contracting between employers and providers to create accountable care, medical home and shared savings strategies, and implementation of account-based plans such as health reimbursement arrangements and health savings accounts.Health Insurance Portability and Accountability Act (HIPAA)

We help employers understand and ensure compliance with the complex set of limitations and rules governing the use of an individual’s protected health information under the Health Insurance Portability and Accountability Act (HIPAA) and related—and often more stringent—state data privacy laws. As part of our industry-leading best practices, we conduct privacy audits, develop customized compliance plans, draft administrative policies and procedures for privacy and security, deliver training sessions and educational materials, and draft a range of contracts and consent and authorization forms for use with plan participants and business associates. To that end, we have developed HIPAA Privacy Solutions, a comprehensive HIPAA implementation tool that, depending on the organization, may be implemented with minimal or no additional outside legal assistance.

Retiree Medical Benefits

We advise private and public companies, nonprofits and other clients on the design and administration of retiree medical benefit plans, including strategies for reducing or eliminating post-retirement benefit obligations and maximizing tax advantages, including the funding of those arrangements. We are also experienced in establishing novel benefit delivery models for retiree medical benefits, such as private exchanges, account-based plans and employer group waiver plans that enable employers to continue to provide benefits to former employees while maximizing and leveraging other payors in the system.

Consolidated Omnibus Budget Reconciliation Act (COBRA)

Elements of the employer-employee relationship can last long after the termination of an employment situation. This is particularly true in the area of health benefits (including onsite medical clinics) and COBRA compliance, in which employees, their spouses, domestic partners and dependents may continue to have access to employer-sponsored health plans for a period of time following an employee’s voluntary or involuntary separation from the company. We advise clients on their responsibilities under COBRA and help resolve disputes involving qualifying events, COBRA eligibility, and coverage periods and elections.

As employee benefits legislation and regulation grow in complexity and the global workforce becomes more interconnected, the demands placed on employers and employee benefit plan administrators are increasing in intensity. Plan sponsors and fiduciaries must continually reexamine and redesign employee benefit programs in light of the latest government guidance, case law and emerging industry best practices, domestically and internationally.

The Legal 500 has named our employee benefits and executive compensation team and individual lawyers among the top providers in the country, and US News-Best Lawyers honored us as the first-ever “Law Firm of the Year” in Employee Benefits in 2011-2012. Chambers USA has also named us “Law Firm of the Year” in Employee Benefits, and has singled out many of our lawyers for individual recognition.

As pioneers in the field of employee benefits and executive compensation, our lawyers have advised clients on virtually every form of benefit plan created. Rather than offering adjunct or add-on counsel in this area, we are focused on employee benefits issues above all else. We provide ongoing employee benefits counsel to more than 60 Fortune 500 companies and one-fifth of Fortune 100 companies. We also advise service providers for employee benefit plans maintained by other employers, including trustees, recordkeepers and insurers. Our broad client base allows us to help clients recognize new trends in the field and quickly identify and address potential legal hurdles.

Our lawyers handle the full range of issues that affect 401(k) plans, profit sharing plans, employee stock ownership plans (ESOPs), pension plans (including cash balance and other hybrid pension plans), non-qualified deferred compensation and executive compensation plans, health and welfare benefit plans, employment agreements and fringe benefit plans. To help minimize potential risks, we regularly conduct compliance reviews in various areas, such as tax qualification, COBRA compliance and fiduciary compliance matters. We also provide privacy and data security advice to help ensure that plan compliance obligations are met when regulated personal data is made accessible to plan service providers.

ESOPs

We wrote the law, we changed the law, we wrote the book. Our group is the largest and most-skilled ESOP practice in the United States, with coverage in all legal disciplines necessary to effectuate a successful ESOP transaction: corporate, tax, employee benefits, securities, labor, litigation and antitrust. Our experience emanates from having drafted most of the ESOP provisions in the original ERISA legislation, along with lobbying for the far-reaching changes enacted in the Tax Reform Act of 1984. We have obtained precedent-setting IRS and Department of Labor rulings and exemptions and been involved in landmark ESOP litigation matters. We provide ongoing counsel to the leading independent fiduciaries, public and private company sponsors, business owners, union and employee groups, and also advise lending institutions on the development of innovative financing techniques for utilizing the ESOP structure more fully.

Nonprofit Entities

Tax-exempt organizations face strict requirements and increased regulatory scrutiny with regard to executive compensation, taxable and non-taxable fringe benefits, and qualified and non-qualified retirement and welfare plans. We advise clients on issues the IRS is likely to consider in audits and inquiries, including board review of compensation, board members’ degree of independence, proper reporting of compensation and benefits on Form 990, and options for establishing the “rebuttable presumption of reasonableness” under the intermediate sanctions rules. We also identify and address key questions that should be considered before IRS contact occurs, including preparation and assembly of appropriate documentation to disclose, the valuing and reporting of deferred compensation arrangements, and information that is protected from disclosure by the attorney-client privilege.

Retirement Plans

We work with a broad range of multinational and domestic employers in designing, amending, spinning off, merging, administering and terminating 401(k) plans, ESOPs, cash balance and other defined benefit plans, and other qualified retirement plans. We regularly represent clients before the IRS, DOL and the PBGC on retirement plan matters, including determination letter requests, correction of plan defects, private letter rulings, advisory opinions and prohibited transaction exemptions. We help our clients negotiate service provider agreements, counsel plan sponsors on fiduciary and committee governance best practices, draft plan amendments and employee communications, and advise buyers and sellers in transactions involving retirement plans. We have extensive experience with cutting-edge issues such as de-risking techniques for defined benefit plans, ERISA requirements for employer securities in qualified plans, and sophisticated plan investment strategies.

Our Investment Funds group focuses on the full spectrum of investment fund matters, including:

• Fund formation and operation
• Capital raising
• Investments (both on a primary and secondary basis) in private funds

• Internal compensation and carry arrangements
• Regulatory and Advisers Act compliance
• Establishment of management companies and seeding transactions
• Spin-offs
• Reorganizations
• Fund restructurings
• Purchases and sales of interests in investment managers

Leveraging our global footprint, our Investment Funds group includes lawyers across the United States, Europe and Asia who have advised on numerous fundraises for institutional, boutique and emerging sponsors. Our fund formation experience extends to all types of funds and managed accounts, including:

• Private equity
• Private credit
• Real estate
• Fund-of-funds
• Energy
• Hedge
• Infrastructure
• Venture
• Distressed/special situations
• Co-investment
• Secondary
• Health care

Based on our breadth and depth of experience advising sponsors, investment advisers, private funds, investment professionals, investors, family offices, private wealth clients, placement agents, lenders and other sophisticated parties, we are positioned to provide full-service advice regarding our clients’ legal and business challenges. In particular, we are well-versed on the state of the market for fund terms and investor negotiations, choice of fund structure and jurisdiction of organization, US and international regulatory and compliance issues, and sponsor structuring and compensation issues.

Our Investment Funds group is embedded in the firm’s Top 10 (Pitchbook 2017) Private Equity practice that serves as lead counsel to clients in all aspects of their lifecycles, including from fund formation to platform acquisitions and financings to portfolio add-on acquisitions and refinancings and eventual exits. Our multidisciplinary team includes specialists from our “Team of the Year” Tax practice (U.S. News-Best Lawyers 2016) and our Employee Benefits & Executive Compensation, Finance, Regulatory and SEC Enforcement Defense practices that work hand-in-hand to tackle highly complex matters.