The Internal Revenue Service released Notice 2020-51 on June 23, 2020, which provides additional Coronavirus related guidance relating to the waiver of 2020 required minimum distributions (RMDs) under certain defined...more
7/11/2020
/ 401k ,
403(b) Plans ,
Benefit Plan Sponsors ,
CARES Act ,
Coronavirus/COVID-19 ,
Highly Compensated Employees ,
Individual Retirement Account (IRA) ,
IRS ,
Popular ,
Required Minimum Distributions ,
Retirement Plan ,
Safe Harbors ,
SECURE Act
This week, on June 29, 2020, the U.S. Department of Labor (the “DOL”) issued a release (the “Release”) proposing an important new initiative for retirement accounts (“Plans”) that are subject to the Employee Retirement Income...more
Last week, the U.S. Supreme Court ruled on June 1, 2020 in Thole v. U.S. Bank that a participant in a defined benefit (“DB”) plan is constitutionally barred from bringing a fiduciary-breach (or similar) claim under the...more
6/11/2020
/ Article III ,
Breach of Duty ,
Defined Benefit Plans ,
Duty of Loyalty ,
Duty of Prudence ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Fiduciary Duty ,
Injury-in-Fact ,
Investment Adviser ,
Mismanagement ,
Pensions ,
Plan Participants ,
Retirement Plan ,
SCOTUS ,
Standing ,
Thole v U.S. Bank
The U.S. Department of Labor (the "DOL") this week, on June 4, 2020, issued an Information Letter (the "Letter") regarding the use of private equity ("PE") investments in investment options offered under participant-directed...more
A substantial portion of available global investment capital is held under private U.S. pension and other employee benefit plans governed by the Employee Retirement Income Security Act of 1974 (“ERISA”). At the same time, for...more
5/16/2020
/ Corporate Social Responsibility ,
Department of Labor (DOL) ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Environmental Social & Governance (ESG) ,
Fiduciary Duty ,
Field Assistance Bulletins ,
Investment Management ,
Political Parties ,
Retirement Plan ,
Trump Administration
Companies receiving assistance under Title IV of the Coronavirus Aid Relief and Economic Security Act will be required to limit compensation payable to certain highly paid officers and employees. In general:
- Officers and...more
As each of us copes with the ongoing challenges posed by COVID-19, we hope this finds you and your families safe and healthy. It can be difficult to think beyond the moment when faced with the daily anxiety and uncertainty...more
4/3/2020
/ CARES Act ,
Coronavirus/COVID-19 ,
Estate Planning ,
Gift Tax ,
Gift-Tax Exemption ,
Income Taxes ,
Relief Measures ,
Retirement Funds ,
Tax Relief ,
Time Extensions ,
Transfer of Assets
The Senate yesterday, March 25, 2020, passed by a vote of 96-0 the stimulus bill known as the Coronavirus Aid, Relief and Economic Security Act (the “Act”), which awaits the President's signature. It has been reported that...more
Under Section 413(2) of the Employee Retirement Income Security Act of 1974 (“ERISA”), ERISA’s three-year statute of limitations for fiduciary breaches and certain other violations starts to run when “the plaintiff had actual...more
3/6/2020
/ Actual or Constructive Knowledge ,
Appeals ,
Breach of Duty ,
Employee Retirement Income Security Act (ERISA) ,
Fiduciary Duty ,
Intel Corp. Investment Policy Committee v. Sulyma ,
Material Disclosures ,
Question of Fact ,
Reaffirmation ,
Retirement Plan ,
Retirement Plan Beneficiaries ,
Reversal ,
SCOTUS ,
Split of Authority ,
Statute of Limitations ,
Summary Judgment
The U.S. federal securities laws, the Commodity Exchange Act and regulations thereunder, and certain other applicable federal laws, rules and regulations, as well as rules of U.S. self-regulatory organizations (such as the...more
2/12/2020
/ Asset Management ,
BEA ,
Benefit Plan Sponsors ,
CFTC ,
Commodities Traders ,
Commodity Exchange Act (CEA) ,
Commodity Trading Advisors (CTAs) ,
Compliance ,
CPOs ,
Cross-Border Transactions ,
Employee Retirement Income Security Act (ERISA) ,
Equity Securities ,
Filing Requirements ,
Financial Industry Regulatory Authority (FINRA) ,
Form 13F ,
Form ADV ,
Form PF ,
Investment Adviser ,
Investment Funds ,
Large Traders ,
NFA ,
Private Funds ,
Private Placements ,
Reporting Requirements ,
Schedule 13D ,
Securities and Exchange Commission (SEC)
Last week, on January 24, 2020, the N.Y. courts adopted revised Standards of Civility for N.Y. attorneys (Standards). The Standards are aspirational, identifying what might be characterized as "best practices" for attorneys,...more
Last week, on December 20, 2019, the U.S. Department of the Treasury and Internal Revenue Service (the “IRS”) published a proposed regulation (the “Proposed Regulation”) under Section 162(m) of the Internal Revenue Code of...more
12/30/2019
/ Binding Agreements ,
Contract Modification ,
Covered Employees ,
Executive Compensation ,
Grandfathered Status ,
IRS ,
Performance-Based Compensation ,
Popular ,
Proposed Regulation ,
Publicly-Traded Companies ,
Section 162(m) ,
Securities Exchange Act ,
Tax Cuts and Jobs Act ,
Tax Deductions ,
U.S. Treasury
The Patient Protection and Affordable Care Act, often referred to as Obamacare (the “ACA”) has survived two trips to the U.S. Supreme Court. It remains to be seen whether there will be a third. ...more
12/24/2019
/ Affordable Care Act ,
Appeals ,
Congressional Authority ,
Constitutional Challenges ,
Health Insurance ,
Individual Mandate ,
Remand ,
Severability Doctrine ,
Shared Responsibility Rule ,
Tax Cuts and Jobs Act ,
Taxing Power ,
Trump Administration
The world of benefits regulation has seen significant change lately, with the enactment of tax reform in 2017 (see “Focus on ERISA - Tax Reform Includes Benefits and Compensation Provisions”), and the rise and fall of the...more
12/20/2019
/ 529 Plans ,
Employee Benefits ,
Employee Contributions ,
Employee Retirement Income Security Act (ERISA) ,
Home Healthcare Workers ,
Individual Retirement Account (IRA) ,
Internal Revenue Code (IRC) ,
Multi-Employer Pensions ,
New Legislation ,
Part-Time Employees ,
PBGC ,
Portability ,
Public Employees ,
Required Minimum Distributions ,
Retirement Funds ,
Safe Harbors ,
SECURE Act ,
Tax Credits ,
Tax Deductions ,
Tax Qualified Plans ,
Withdrawal
The recent decision by the U.S. Court of Appeals for the First Circuit in the Sun Capital Partners case may allay some of the concerns that private-equity and other investment funds that acquire or invest in portfolio...more
12/13/2019
/ Aggregation Rules ,
Appeals ,
Controlled Groups ,
Employee Retirement Income Security Act (ERISA) ,
Joint and Several Liability ,
Multiemployer Plan ,
Partnership-in-Fact ,
PBGC ,
Pensions ,
Portfolio Companies ,
Private Equity Funds ,
Reversal ,
Sun Capital Partners ,
Withdrawal Liability
The Delaware Chancery Court rejected an attempt by Tesla’s Board of Directors to dismiss a challenge to CEO Elon Musk’s “extraordinary” 2018 compensation package. Because Musk is also Tesla’s controlling stockholder, the...more
10/21/2019
/ Board of Directors ,
Breach of Duty ,
Burden-Shifting ,
Business Judgment Rule ,
Compensation Committee ,
Conflicts of Interest ,
Controlling Stockholders ,
Elon Musk ,
Entire Fairness Standard ,
Executive Compensation ,
Fiduciary Duty ,
MFW ,
Motion to Dismiss ,
Ratification ,
Shareholder Litigation ,
Tesla
The upcoming term of the U.S. Supreme Court is shaping up to be a busy one with respect to cases arising under the Employee Retirement Income Security Act of 1974 (“ERISA”). There have been other terms with multiple ERISA...more
10/16/2019
/ Actual or Constructive Knowledge ,
Appeals ,
Breach of Duty ,
Certiorari ,
Class Action ,
Corporate Counsel ,
Defined Benefit Plans ,
Duty of Prudence ,
Employee Retirement Income Security Act (ERISA) ,
Employee Stock Purchase Plans ,
Fiduciary Duty ,
Intel Corp. Investment Policy Committee v. Sulyma ,
Investment Funds ,
Overfunded Plans ,
Pleadings ,
Retirement Plan ,
Retirement Plans Committee of IBM v Jander ,
SCOTUS ,
Split of Authority ,
Standard of Review ,
Standing ,
Statute of Limitations ,
Thole v U.S. Bank
The Internal Revenue Service (the “IRS”) issued final regulations, effective September 23, 2019 (the “Final Regulations”), that modify the hardship distribution rules for plans established under Section 401(k) of the Internal...more
10/4/2019
/ 401k ,
Benefit Plan Sponsors ,
Bipartisan Budget Act ,
Final Rules ,
Hardship Distributions ,
Internal Revenue Code (IRC) ,
IRS ,
Pension Protection Act of 2006 ,
Retirement Plan ,
Retirement Plan Providers ,
Tax Cuts and Jobs Act
In Dorman v. Charles Schwab Corp., the U.S. Court of Appeals for the Ninth Circuit held on August 20, 2019 that claims under the Employee Retirement Income Security Act of 1974 (“ERISA”) can generally be subject to mandatory...more
9/11/2019
/ 401k ,
American Express v Italian Colors Restaurant ,
Arbitration ,
Best Interest Contract Exemptions ,
Class Action ,
Department of Labor (DOL) ,
Employee Benefits ,
Employee Retirement Income Security Act (ERISA) ,
Federal Arbitration Act ,
Fiduciary Duty ,
Fiduciary Rule ,
Field Assistance Bulletins ,
Mandatory Arbitration Clauses ,
Putative Class Actions
The U.S. Securities and Exchange Commission, on June 5, 2019, voted 3-1 in favor of adopting a package of rules, amendments and interpretations (Final Rules) intended to improve the retail investor experience and to provide...more
6/12/2019
/ Best Interest Standard ,
Broker-Dealer ,
Compliance ,
Compliance Dates ,
Conflicts of Interest ,
Disclosure Requirements ,
Duty of Care ,
Duty of Loyalty ,
Fiduciary Duty ,
Form CRS ,
Investment Adviser ,
Investment Advisers Act of 1940 ,
New Rules ,
Regulation Best Interest ,
Retail Investors ,
Securities and Exchange Commission (SEC) ,
Standard of Conduct
The case is particularly noteworthy in that it marks the first time of which we are aware that a judicial decision (even an interlocutory one) has expressly raised the issue of whether the sponsors’ debt characterization of...more
4/4/2019
/ Asset-Backed Securities ,
Damages ,
Debt-Equity ,
Employee Retirement Income Security Act (ERISA) ,
Excise Tax ,
Investment-Grade Notes ,
Investors ,
Prohibited Transactions ,
Retirement Funds ,
Securitization Vehicles ,
Sub-Prime Loans ,
Trusts
The U.S. federal securities laws, the Commodity Exchange Act and regulations thereunder, and certain other applicable federal laws, rules and regulations, as well as rules of U.S. self-regulatory organizations (such as the...more
1/31/2019
/ Commodities Traders ,
Commodity Exchange Act (CEA) ,
Commodity Pool ,
Compliance ,
CPOs ,
Financial Industry Regulatory Authority (FINRA) ,
Financial Services Industry ,
Investment Adviser ,
Investment Management ,
NFA ,
Private Funds ,
Registered Investment Advisors ,
Reporting Requirements ,
Securities ,
Securities and Exchange Commission (SEC)
The Patient Protection and Affordable Care Act (the “ACA”) has survived two trips to the U.S. Supreme Court. It now appears as though a third is likely....more
12/21/2018
/ Affordable Care Act ,
Commerce Clause ,
Constitutional Challenges ,
Individual Mandate ,
SCOTUS ,
Severability Doctrine ,
Shared Responsibility Rule ,
Tax Cuts and Jobs Act ,
Tax Penalties ,
Taxing Power ,
Texas v US
The Internal Revenue Service (the “IRS”) recently issued Notice 2018-68 (the “Notice”) providing much-anticipated guidance on certain aspects of the “Tax Cuts and Jobs Act” (the “Act”) enacted in December 2017, which, among...more
8/29/2018
/ Covered Employees ,
Executive Compensation ,
IRS ,
New Guidance ,
Pay-for-Performance ,
Publicly-Traded Companies ,
Sales Commissions ,
Section 162(m) ,
Tax Cuts and Jobs Act ,
Tax Deductions ,
Written Agreements
The U.S. Securities and Exchange Commission on April 18, 2018 published a package of proposed rules and interpretations intended to improve the retail investor experience and to provide greater clarity regarding customers’...more
7/11/2018
/ Best Interest Standard ,
Broker-Dealer ,
Comment Period ,
Conflicts of Interest ,
Disclosure Requirements ,
Due Diligence ,
Fiduciary Duty ,
Financial Industry Regulatory Authority (FINRA) ,
Financial Services Industry ,
Investment Adviser ,
Investment Products ,
Proposed Rules ,
Regulatory Oversight ,
Retail Investors ,
Securities and Exchange Commission (SEC) ,
Standard of Care