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RPTE eReport newsletter

August 2013

Group & Committee News

Employee Benefit Plans and Other Compensation Arrangements Group

The Employee Benefit Plans and Other Compensation Arrangements Group is racing to complete another successful year and prepare for 2013-2014. The Group presented several CLE programs at the 2013 RPTE Spring Symposia in Washington, DC- “Pension Plans, Limited Partnerships & REITs: Is One of These Things Not Like the Others?” (in conjunction with the Special Investors and Investment Structure Group); “Government is Everywhere: Special Issues in Business Succession Planning” (in conjunction with the Business Planning Group); and "Look What The Wind Blew In: Coping With Health Care Reform.” In addition, the Group is actively coordinating with the Tax Section to provide programs at the Joint Fall CLE Meeting in San Francisco in September, including a panel presentation regarding assistance attorneys can provide to plan sponsors in connection with the review of investment advisor and service provider contracts, as well as joint meetings of each of the Group’s committees with their Tax Section subcommittee counterparts. You are welcome to attend any of these programs!

As a special area of interest this year, the Group has focused on benefit plan issues related to missing participants. In this regard, the Group has held informal discussions with government officials and is in the process of preparing comments to the PBGC with respect to its proposed missing participant program for terminating defined contribution plans.

In addition, the Group has continued to host conference calls on current benefit topics of interest every other month. Responsibility for leading the calls rotates among the committees in the Group. Some of the highlights of the calls and other activities of the Group’s committees are:

Plan Transactions and Terminations Committee
Chair Harold Ashner again acted as scrivener for the annual ABA question and answer session with the PBGC in May, 2013. In addition, the committee led a call in January on whether a private equity fund should be treated as a “trade or business” for ERISA controlled group liability purposes and PBGC’s new pilot program on enforcement of downsizing liability under ERISA Section 4062(e). (As a follow up, both of these issues continue to be of intense interest. On July 24, 2013, in Sun Capital Partners III, LP v. New England Teamsters & Trucking Industry Pension Fund, the First Circuit Court of Appeals held that in certain situations a private equity fund may be a “trade or business” for ERISA multiemployer pension withdrawal liability purposes.)

Qualified Plans Committee
The Qualified Plans Committee has spearheaded the missing participant project, and also led a conference call in March regarding the recently revised Employee Plans Compliance Resolution System (“EPCRS”), changes in the Internal Revenue Service determination letter program, and the impact of the American Taxpayer Relief Act of 2012 on retirement plans.

Nonqualified Deferred Compensation Committee
The Nonqualified Deferred Compensation Committee led a conference call in May regarding increased IRS scrutiny of executive compensation arrangements, common errors under Code Sections 409A and 162(m) and issues relating to discounted stock options.

Fiduciary Responsibility, Administration, and Litigation Committee
The Fiduciary Responsibility, Administration, and Litigation Committee is preparing to lead a conference call regarding ERISA fiduciary responsibility issues commonly arising with respect to use of “canned” plan documents.

Welfare Benefit Plans Committee
The Welfare Benefit Plans Committee took the leading role in the healthcare reform presentation at the Spring Symposia. In addition, it hosted a group study call in July to discuss the employee benefit issues arising as a result of the Supreme Court’s decision in Windsor v. United States that found Section 3 of the Defense of Marriage Act to be unconstitutional. As a result of the decision, where ERISA or the Internal Revenue Code require that spouses receive particular benefits or treatment under employee benefit plans, that treatment will have to be extended to couples in state-recognized same sex marriages.

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American Bar AssociationPublished in the RPTE eReport, August 2013. © 2013 by the American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The materials contained herein represent the opinions of the authors and editors and should not be construed to be those of either the American Bar Association or The ABA Section of Real Property, Trust and Estate Law unless adopted pursuant to the bylaws of the Association. Nothing contained herein is to be considered as the rendering of legal advice for specific cases and readers are responsible for obtaining such advice from their own legal counsel. These materials and any forms and agreements herein are intended for educational and informational purposes only. The authors and other contributors to the RPTE eReport are solely responsible for the content of their submissions, including the accuracy of citations to legal resource materials.