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Fiduciary Responsibility
Representative
Engagements |
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The attorneys in our Fiduciary Responsibility
Group have strong ties to the Department of Labor which enable
them to stay on top of the most current developments in ERISA
Title I areas such as plan expenses, the identification of
plan assets, participant-directed 404(c) plans, participant
education, and reporting and disclosure requirements. In
the past two years, attorneys in the group have: |
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Played a major role in the development
of the most widely used administrative class exemptions
from ERISA’s prohibited transaction restrictions,
including exemptions for investment vehicles, insurance
agents and brokers, sales of investment products,
and qualified asset managers. |
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Led efforts to develop class exemptions
for “cross-trading” and “synthetic
GICs.” |
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Obtained numerous individual
prohibited transaction exemptions, including exemptions
for company demutualizations, in-kind contributions,
real estate transfers, performance fees, and traditional
leases and loans. |
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Advised plan sponsors and financial institutions
on structuring investment management and advisory services,
designing financial services products, and ensuring
that real estate and other asset-type portfolios and
products comply with ERISA’s fiduciary provisions. |
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Created a highly specialized 401(k) Group that counsels
clients on legal issues surrounding 401(k) plans, including
questions raised by employer stock, monitoring plan
investments, service provider licensing agreements,
the provision of investment advice and participant
education, and fee-sharing arrangements. |
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Monitored benefits-related developments at the SEC
and the Office of the Comptroller of the Currency on
a regular basis so that we can more deeply and effectively
analyze the securities law dimensions of ERISA plans,
focusing on investments and administration as well
the design of insurance company, financial institution,
and corporate investment products. |
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Developed the first exemption for insuring employee
benefits in captive insurance companies and obtained
most of the subsequent exemptions in this area. |
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Compliance
Audits
Working with other practice Groups
at Groom, we performed a comprehensive compliance review
of the qualified and welfare plans of a major financial
institution, paying particular attention to areas of greatest
risk for the employer and the fiduciaries charged with
managing the plan.
Our review included tax qualification,
welfare benefits taxation,
VEBA qualification, claims and plan administration, DOL fiduciary
issues, COBRA, and HIPAA. |
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Investment
Products
We have worked with more than a dozen major financial
institutions to structure investment advisory and investment
management products to comply with the prohibited transaction
rules of ERISA and the Internal Revenue Code. The following
projects are typical of our work in this area:
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We recently
structured a discretionary investment management
product offered to both defined benefit plans and
defined contribution plans where all of the fees
received by the institution from proprietary and
non-proprietary investments were "offset" against
the institution's investment management fee. This "revenue
neutral" product was modeled on the DOL's "Frost
Bank" advisory opinion. |
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Over the past
several years, we have developed several investment
advisory products involving proprietary and non-proprietary
mutual funds, insurance contracts, pooled insurance
company separate accounts, and bank collective trusts,
relying on existing DOL prohibited transaction class
exemptions and statutory exemptions. |
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We have created
both fiduciary/participant education products that
build upon the DOL's Interpretive Bulletin 96-1 and
advisory and discretionary products modeled on the
DOL's "SunAmerica" advisory opinion. |
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Plan
Sponsor Investment Issues
We advise numerous large plan sponsors on a host of
investment issues related to their defined benefit and defined
contribution plans, including:
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The negotiation
and drafting of investment management agreements. |
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The preparation
of investment guidelines. |
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The communication
of advice to investment committees. |
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The review of
private placement and other investment documents. |
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The negotiation
and review of contracts with recordkeepers and financial
services firms. |
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Plan
Investments in Employer Stock
We have counseled
companies on the design and implementation of benefit plans
which are intended to invest in company stock, including
employee stock ownership plans (ESOPs). We
have also provided advice on the re-financing of ESOP loans.
In numerous engagements, we have brought our expertise to
bear on matters related to the limiting of company and personal
liability associated with investing defined contribution
plan assets in company stock. Our coverage in this
area has included plan design, the composition of investment
committees, the education of corporate officers with investment
responsibility, the preparation of guidelines for the investment
in company stock, corporate and plan indemnity provisions,
and fiduciary liability policies.
We have also defended individual fiduciaries, companies, and
financial institutions in DOL audits of plan investments in
company stock and assisted our Litigation Practice Group in
cases brought by the DOL and by classes of plan participants. |
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