ERISA Fiduciary Duty

Our ML BeneHelp program recognizes that our employee benefits clients often need an extra pair of hands due to a variety of circumstances—both unforeseen and expected. Through ML BeneHelp, our senior benefits advisors are available for in-person or virtual temporary assignment to assist during crunch times (we expect these assignments would last no more than six months). These professional advisors, many of whom have more than 20 years of experience and have varied backgrounds that include working for corporate human resources/benefits departments, consulting firms, and other law firms (and some are nonpracticing lawyers), bring unique and substantial technical knowledge and practical experience to our benefits practice and clients.

The types of projects ML BeneHelp can assist with include, but are not limited to, the following:

• Drafting, reviewing, and amending plan documents, summary plan descriptions, and summaries of material modifications
• Drafting and reviewing participant communications and notices, including open enrollment materials
• Drafting, reviewing, and processing qualified domestic relations orders (QDROs) and qualified medical child support orders (QMSCOs)
• Conducting internal plan audits (document, operational, and dependent), and assisting with governmental agency audits
• Assisting with and reviewing Form 5500 filings 
• Running point between the client and outside vendors, including assisting with outside vendor RFPs
• Assisting with corrections filings under the Internal Revenue Service Employee Plan Compliance Resolution System (EPCRS) and the US Department of Labor Voluntary Compliance Program (VCP), as well as determination letter submissions
• Assisting with day-to-day administration issues, including benefits claims and appeals matters, enrollment questions, COBRA (and other continuation coverage) questions, tax withholding questions, and other matters
• Assisting with reductions-in-force voluntary severance programs to ensure that the programs and related documentation comply with ERISA, COBRA, tax rules, and plan documents
• Assisting with due diligence reviews and post-closing benefits integration related to mergers, acquisitions, and other transactions

Our senior benefits advisors regularly perform these services and others for health and welfare and retirement plans. They are available to be dedicated to your projects—whether from the client’s offices, remotely, or a combination thereof.

ML BeneHelp services are priced in a variety of ways, including on a fixed-fee basis, which account for the scope of work and whether the senior benefits advisors are working at the client’s location or remotely from their Morgan Lewis offices (or some combination thereof).

We routinely advise corporate, multiemployer, tax-exempt, and public plan sponsors and fiduciaries on ERISA fiduciary and prohibited transactions issues, as well as relevant state and local laws as applicable to public plans. Our advice covers fiduciary governance. This includes the following:

• Proper structuring of committees, policies, and delegations
• Payment of plan expenses
• Plan governance
• Audits and investigations by the US Department of Labor (DOL)
• Prohibited transaction exemptions
• Fiduciary insurance policies

For example, in our work involving prohibited transaction exemptions, we help plans and plan sponsors obtain prohibited transaction exemptive relief and error corrections from the DOL and similar guidance from applicable state governing entities.

We also advise plan fiduciaries on ERISA and state law relating to claims administration, service provider retention, minority- and women-owned business requirements reporting, and disclosures. We frequently conduct fiduciary training for boards, committees, and employee benefits personnel.

Our team also counsels clients on fiduciary matters arising in the context of investments. This includes counseling on:

• The provision of investment advice and participant education
• Employer stock in 401(k) plans
• Securities lending arrangements
• Commission recapture programs
• Soft-dollar brokerage arrangements
• 401(k) fee review
• Other service provider arrangements

We advise on and negotiate all types of service provider and investment-related contracts, such as investment management, trust, custody, securities lending, and transition management agreements, and various types of trading documentation, including futures, repurchase, and International Swaps and Derivatives Association (ISDA) agreements. 

Employee benefit plan fiduciaries today often perform the job responsibilities with lean staffs or outsourced administration. ERISA’s standards of conduct require fiduciaries to operate plans in accordance with governing documents and instruments. Fiduciaries are also required to perform their duties with skill, prudence, and diligence. These stringent standards present risks for liability stemming from the activities of employee benefits personnel and outside service providers.

To help our clients avoid breaches of fiduciary duty and prohibited transactions under ERISA, we conduct internal fiduciary audits. Through these audits, we identify legal compliance issues, best practices gaps, and administration inconsistencies. Unlike consulting and audit firms, we generally are able to structure these engagements to take best advantage of the attorney-client privilege and attorney work product doctrines.

We also perform audits as a part of due diligence in mergers and acquisitions. Many clients choose us to lead an audit and coordinate with other professionals because a legal audit conducted by or through a lawyer is more likely to be privileged.

Given today’s complex and rapidly changing legal and regulatory environment, it is rare for a plan sponsor to be in total compliance from an operational perspective. Fortunately, the Internal Revenue Service’s Employee Plans Compliance Resolution System (EPCRS) permits plan sponsors to correct qualification failures or failures under section 403(b) of the Internal Revenue Code. The US Department of Labor offers a similar program for fiduciary issues. Our lawyers are skilled in handling voluntary corrections efforts (sometimes on an anonymous basis) and in issues raised during an audit.

The US Department of Labor (DOL) actively audits employee benefit plans and their service providers related to compliance with ERISA’s fiduciary duties. These DOL audits and investigations can be disruptive to business and may result in significant fines and/or litigation.

In DOL audit representations, we help our clients review and produce responsive documents, prepare for agency interviews, respond to allegations of wrongdoing, and work with the DOL to remedy outstanding issues. Our level of involvement ranges from counseling the client behind the scenes to serving as the DOL’s primary contact.

If the audit turns to litigation, we involve our ERISA, securities, and/or tax litigators.

Examples of our work involving DOL audits and investigations include the following:

• Lost and missing participant audits 
• Proprietary funds and proprietary service audits 
• Pension and 401(k) plan compliance audits, including related to potential prohibited transactions and breaches of fiduciary duty 
• Audits of third-party service providers, including advisors, consultants, and administrators
• Audits related to employee stock ownership plans (ESOPs) 
• Multiemployer plan audit

We counsel employee benefit plan clients, including institutional investors, on key industry issues such as:

• Investing plan assets in mutual funds, variable annuity contracts, collective trusts, and other commingled vehicles, along with related fee issues, including fee structures, revenue sharing, and fee offsets
• Delivering investment education to plan participants
• Cross-trading of securities
• Soft-dollar and directed brokerage
• Using affiliated service providers and service provider alliances

We also help clients select investment vehicles and managers, asset allocation services, and default investments, and counsel clients on service provider transition matters, including blackout periods, mapping, and employer stock issues.

In addition to helping institutional investor clients analyze and negotiate their various investments, we also routinely work with clients on special projects involving their investment programs. For instance, we counsel clients on launching hedge fund, private equity, and secondary investment programs; forming captive funds of funds and co-investment funds; and structuring the equity component of complex warehouse financing facilities.

We also advise clients on venture capital funds, funds of funds, and real estate funds, including real estate investment trusts (REITs). Beyond transactional support, we work with our institutional investor clients and their consultants and advisers when analyzing complex fiduciary duty issues and establishing appropriate governance structures and investment policies.

Morgan Lewis lawyers negotiate and draft agreements in connection with all types of plan investments. These include the following:

• Investment management agreements
• Investment policy statements
• Trust agreements
• Commingled fund documentation
• Custodial agreements
• Insurance company annuity contracts
• Stable value arrangements
• Transition management
• Securities lending arrangements
• Commission recapture programs
• Soft-dollar and directed brokerage arrangements
• Wrap and managed account programs
• Limited partnership agreements
• Third-party administration contracts
• Other plan investment arrangements

In partnership with colleagues from our business and finance, investment management, and tax teams, we handle issues arising under federal and state securities laws, US and non-US tax laws, ERISA, and state fiduciary, legal investment, trust, nonprofit, and corporate laws. We guide our institutional investors through all types of regulatory and judicial investigations and controversies, including those brought by the US Securities and Exchange Commission (SEC), DOL, the US Department of Justice (DOJ), and other claimants.

Developing and marketing investment products and services for the benefit plan marketplace require maneuvering through a unique and complex regulatory maze spanning ERISA as well as securities, banking and insurance, tax, real estate, corporate, and other laws. Working closely with our firm’s investment management and broker-dealer team, as well as members of our employee benefits team, we counsel many leading financial service providers’ employee benefit plans.

We advise financial services clients (such as insurance companies, banks, mutual fund complexes, investment advisers, and broker-dealers) on transactions involving retirement plan assets and related prohibited transaction concerns. Our lawyers handle reporting and disclosure, cross-trading securities, electronic trading and alternative trading systems, and swaps and other off-market transactions such as over-the-counter (OTC) derivatives, structured notes, stable value products, and foreign currency (FX) transactions.

We also structure and advise clients about investments in alternative vehicles, such as hedge funds, venture capital funds, funds of funds, and real estate funds.

We counsel clients on their IRAs and related products, such as simplified employee pensions (SEPs), savings incentive match plans for employees (SIMPLEs), Coverdell education savings accounts (CESAs), and health savings accounts (HSAs). For these plans, we help prepare and maintain applications, custodial and trust agreements, disclosure statements, beneficiary forms, and other account documentation, as well as annuity contract endorsements. We also obtain nonbank custodial approvals and notifications; coordinate the acquisition, merger, and transfer of IRA custodians; and navigate complex reporting and filing issues.

Morgan Lewis counsels clients on required minimum distributions, subtransfer agency issues, and related trust and estate issues, as well as investments in alternative vehicles.