The legal landscape in which benefit plan fiduciaries, sponsors and service providers must operate has grown increasingly complex in recent years. Litigation challenging the selection of plan investments and service providers, plan governance, and administration have proliferated. In addition, ERISA's prohibited transaction rules and exemptions have grown increasingly complex and detailed. Benefits professionals need to navigate carefully through this complex environment to ensure that they avoid litigation, governmental audit, excise taxes, and excessive cost. We routinely assist our clients in these endeavors.
Fiduciary Compliance
We routinely advise plan sponsors and fiduciaries on ERISA fiduciary and prohibited transactions issues, including the provision of investment advice and participant education, payment of plan expenses, plan governance, audits and investigations by the Department of Labor, prohibited transaction exemptions, employer stock in 401(k) plans, securities lending arrangements, commission recapture programs, soft-dollar brokerage arrangements, 401(k) fee reviews, service provider arrangements, and fiduciary insurance policies. Morgan Lewis has extensive experience in negotiating and drafting agreements in connection with all types of traditional and alternative plan investments, including investment management agreements, investment policy statements, custodial agreements, insurance company annuity contracts, limited partnership agreements, third-party administration contracts and various other plan investment arrangements. We also conduct fiduciary audits, reviewing the operations of clients in a variety of fields.
Vendor Practice
Developing and marketing investment products and services for the benefit plan marketplace requires maneuvering through a unique and complex regulatory maze spanning ERISA, securities, banking and insurance, tax, real estate, corporate, and other laws. Working closely with our firm’s Investment Management and Broker-Dealer Practice, members of our EB/EC Group advise many leading "vendors" of financial products and services to employee benefit plans.
We regularly advise clients on such key industry issues as investment of plan assets in mutual funds and mutual fund fee issues; delivering investment advice to plan participants; "cross-trading" of securities; ERISA section 404(c); soft dollars and directed brokerage; and vendor "alliances." We also have extensive experience with structuring "institutional" investments such as hedge funds, venture capital funds, fund-of-funds, and real estate funds including REITs. We have assisted clients in obtaining key Department of Labor exemptions and advisory opinions in these and other areas.