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Employee Benefits

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401(k) and Other Defined Contribution Plans

  • Devised and negotiated a favorable resolution for the correction of 401(k) plan loan errors affecting nearly 200 plans and 2,100 loans by leveraging the voluntary correction programs offered by both the Department of Labor and IRS.
  • Helped publicly-traded companies add an ESOP component to their traditional 401(k) plans, thereby allowing the companies to claim additional corporate income tax deductions, at the same time that plan participants were given the option of receiving cash distributions of dividends paid on company stock held in the plans.
  • Negotiated numerous favorable agreements with the IRS and other regulatory agencies, thereby shielding retirement plan sponsors both from the tax consequences of plan disqualification and the legal consequences of violating other laws.
  • Successfully negotiated numerous compliance statements under the IRS’s Employee Plans Compliance Resolution System (EPCRS), thereby shielding employers from the consequences of plan disqualification.
  • Advised sponsors of tax-qualified retirement plan on compliance with the Tax Code’s nondiscrimination and minimum-coverage requirements, including the special rules applicable to qualified separate lines of business (or QSLOBs).
  • Advised 401(k) plan sponsors on the proper implementation of ERISA spending accounts.
  • Amended Section 403(b) plans to allow for post-severance employer contributions as an early retirement incentive.
  • Advising 401(k) plan sponsors on plan governance and fiduciary issues, including analyzing fee arrangements, negotiating recordkeeping agreements, and drafting investment policy statements.

 

Benefits Litigation


  • Served as lead defense counsel in the successful defense of a lawsuit challenging the denial of COBRA coverage, establishing new, employer-friendly precedent in the process. Maloney v. Ameristar Casinos, No. 4:09-cv-00673 (W.D. Mo. 3/9/2010).

  • Successfully defeated a class action, breach-of-fiduciary-duty claim that was brought against a Fortune 20 client arising out of the Enron bankruptcy, convincing the Federal Court to dismiss the matter before discovery was authorized. Geiler v. Jones, 37 EBC 1018, 2006 Westlaw 407683 (D. Neb. Feb. 2, 2006).

  • Recovered overpayments to participants from both retirement plans and self-funded health care plans, through arbitration and litigation and under both ERISA’s civil enforcement provisions and state law.

  • Successfully litigated complex ERISA standing and preemption issues.

Executive Compensation

  • Represented the boards of large tax-exempt entities in the process of negotiating and drafting employment agreements and special nonqualified retirement arrangements for executives of those entities.
  • Created a special type of deferred compensation arrangement for the General Manager of a public utility, thereby allowing for fully vested deferrals in excess of the usual Section 457 limits.
  • Added qualified supplemental executive retirement programs (or QSERPs) to qualified pension plans as a way of allowing executives to receive additional deferred compensation that is fully protected from the claims of their employers’ creditors.
  • Advised employers on the permissible integration of a 401(k) plan with a nonqualified deferred compensation arrangement, particularly in view of the constraints imposed by Section 409A of the Tax Code.

Fiduciary Advice

  • Created a proprietary risk assessment tool that provides a unique way of identifying and measuring fiduciary, plan-governance, and operational risk for employers who sponsor a retirement plan. The report generated with this tool serves as a benchmark for process-improvement strategies.
  • Developed a sophisticated plan-governance structure for the qualified plans of a Fortune 100 publicly-traded company so as to reduce the risk of ERISA fiduciary liability for its board of directors and officers.
  • Conducted a comprehensive review and analysis of the fiduciary processes and procedures used by three multiemployer benefit funds with over $7 billion in assets.
  • Advised a number of 401(k) plan service providers and plan sponsors in connection with 401(k) “excessive fee” issues.
  • Advised clients with 401(k) plans that hold company stock about their fiduciary risks and obligations in light of recent stock-drop litigation.
  • Assisted employers in making submissions to the Department of Labor under the DOL’s Voluntary Fiduciary Correction Program.
  • Prepared a comprehensive risk assessment of the employee benefit plans and programs maintained by a large public hospital.
  • Assisted employers and plan sponsors in negotiating the resolution and settlement of Department of Labor investigations. In one case, the DOL’s demand for over $2 million in “lost profits” was settled for an additional contribution of only a few hundred dollars.

Health and Welfare Plans


  • Advised sponsors of self-funded health plans on the proper design of their employee wellness programs.

  • Helped sponsors of self-funded health plans comply with HIPAA’s privacy and security requirements, including the drafting of policies and procedures, notices of privacy practices, and plan amendments. Also conducted training, both on-site and via webinars.

  • Advised employers on the termination of retiree group health plans and other strategies for reducing future liabilities for retiree health benefits.

Health Care Reform

  • Assisted several fast food franchises in analyzing their options under the Affordable Care Act’s “play-or-pay” rules, pointing to ways in which they could avoid having to either offer expensive health coverage to additional employees or pay onerous penalties.
  • Helped an employer shield its self-funded retiree health coverage from compliance with expensive ACA mandates by splitting a combined plan into separate active and retiree plans.
  • Advised staffing companies on their obligations under the Affordable Care Act’s play-or-pay requirements, including special rules that might assist them in their competitive marketplace.
  • Helped employers analyze their options under the ACA’s “play-or-pay” rules, pointing to ways in which they could avoid having to offer expensive health coverage to additional employees or pay onerous penalties.
  • Advised association health plans on their obligations under the Affordable Care Act, including options for avoiding the application of the ACA’s small group health insurance community rating requirements.

Pension Plans


  • Converted many traditional defined benefit pension plans into cash-balance arrangements, thereby increasing employee satisfaction with their pension benefits and shielding employers from the volatility associated with funding traditional defined benefit plans.

  • Terminated defined benefit pension plans and shepherded those terminations though the procedures established and enforced by the PBGC, thereby eliminating the sponsors’ PBGC premium obligations and the administrative and funding obligations associated with those plans.

  • Negotiated a refund from the PBGC to an employer of over a half million dollars in premiums.

  • Assisted sponsors of defined benefit pension plans in the implementation of lump-sum payment windows, thereby reducing both PBGC premiums and the funding volatility often associated with such plans.