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#MeToo, Clawbacks and Executive Compensation in 2019: Has Anything Changed? (PDF)

161-page presentation outline. "[To] know whether compensation is subject to clawback where an executive is terminated for sexual misconduct that constitutes 'cause,' one needs to know what the corporate clawback or recoupment policy says, and those policies are not commonly included in securities filings.... It seems reasonable to expect that over the next few years sexual harassment will increasingly be explicitly listed as 'cause' for purposes of determining whether a terminated executive must forfeit potential compensation."

Multiple Employer Retirement Plans: A Petite Primer (PDF)

24 pages. Topics include: [1] Tax Code's Multiple Employer Plan rules: participation, vesting, exclusive benefit rule, Section 415 limitations, employer-by-employer determinations (especially nondiscrimination rules), disqualification of entire plan, funding and deduction rules, Section 413(b) collectively bargained plan rules; [2] Cooperative and Small Employer Charity Plans (CSEC Plans); [3] DOL's different understanding of what constitutes a single 'plan'; [4] Proposed DOL regulation: bona fide group or association of employers, bona fide Professional Employer Organization, working owners; [5] Would the DOL's proposed rule make a difference?

Ethical Considerations for Employee Benefits Counselors (PDF)

69 pages. Topics: [1] The glory and peril of written advice; [2] Minutes: how much detail to include? [3] Attorney's retention of consultant: privilege for client's communications with consultant; [4] Preserving client confidentiality on listservs and online chat rooms; [5] Attorney-client privilege; [6] Work product doctrine.

#MeToo: Sexual Harassment and Executive Compensation (PDF)

10 pages. "Whether ... 2017 was a harbinger of an enduring change in employers' attitudes towards, and approaches in addressing, allegations of sexual harassment relating to key executives remains to be seen. If it is true that #TimesUp, and in particular if customers (and members of the public more generally) favor harsher treatment of executives engaged in sexual harassment or assault, compensation committees may find value in reflecting this new attitude in the structure of their companies' executive compensation programs and agreements."

Privacy Risks Beyond HIPAA: Retirement and Other Non-Health Benefit Plans (PDF)

28 pages. "The day will come when a retirement plan fiduciary is held liable for a security or privacy breach.... [F]iduciaries of retirement and other non-health plans should begin now to bolster their processes for protecting participants' private information in the possession of plans, plan vendors, and the fiduciaries themselves.... [O]ne can imagine a day when courts will require fiduciaries to take carefully considered steps to reduce the risk of private information that can be used to identify participants being accessed by unauthorized parties or otherwise being misused."

ERISA Fiduciary Update (PDF)

45 pages. Topics: [1] DOL Fiduciary Rule: Arbitration agreements and prohibition on waiving right to participate in class action; [2] Tibble v. Edison Int'l: The tab for choosing retail over institutional shares of mutual funds; [3] Health Plan TPAs as Fiduciaries: Fee disputes; [4] Cross-plan offsetting in health plans; [5] Attacks on arrangements between Financial Engines and recordkeepers; [6] The 'Vanguard' of fee, and other investment, litigation; [7] Surprise! Defendants win in Tatum v. R.J. Reynolds Tobacco Co.; [8] Proof of causation and burden-shifting in fiduciary breach cases; and [9] Standing: Defined benefit plan fiduciary claims.

Using the New IRS Remedial Amendment Period Rules (PDF)

28 pages. "To properly consider the consequences of this effective elimination of the type of determination letter program ... it is important to understand when qualified retirement plans may be amended retroactively.... [If] an employer or other plan sponsor has unlimited ability to retroactively amend a plan, it becomes relatively unimportant whether the IRS will issue a determination letter saying the form of the plan appears consistent with the Tax Code requirements for qualified retirement plans."

What Is a 'Gig'? Benefits for Unexpected Employees (PDF)

17 pages. "It is unclear to what degree, if any, the DOL Wage and Hour Division's more aggressive position ... on who constitutes an employee, and court decisions concerning who is an employee for purposes of the FLSA, NLRA, or state labor codes, will affect determinations of who is an employee for purposes of retirement plans, health insurance, or other employee benefit programs.... If a gig worker is an independent contractor, rather than an employee, his or her options for accessing retirement, health insurance, and the other benefits of the type employees sometimes enjoy would seem to be the set of options available to self-employed persons."

Recent Employer Stock and Other Fiduciary Litigation (PDF)

43-page outline of March 4 presentation to the 2016 Plan Administrator Skills Workshop, Southwest Benefits Association. Includes detailed discussion of many recent employer stock cases, along with significant fiduciary litigation about retirement and health benefit plans.

Internal Trustees of ESOPs (PDF)

86-page presentation outline. Topics include: [1] Sources of ESOP Trustee's Duties; [2] Internal v. External Trustee; [3] Legal Liability of Trustees; [4] Internal Trustee's Interaction with Company's Board of Directors; [5] Valuation of Company Stock; and [6] Payment of Expenses from Plan Assets.