Advertise on podcast: Proskauer Benefits Brief: Legal Insight on Compensation & Benefits

Last month, Proskauer secured a unanimous victory at the U.S. Supreme Court on behalf of the Trustees of the IAM National Pension Fund. In a 9-0 decision authored by Justice Ketanji Brown Jackson, the Court resolved a circuit split concerning how multiemployer pension plans calculate the liability of withdrawing employers.   In this episode of the Proskauer Benefits Brief, Neil Shah is joined by John Roberts, who argued the case before the Court, to discuss the Court’s rejection of the Second Circuit’s timing rule, the reasoning behind the opinion, and the implications for multiemployer pension plans, employers, actuaries, and future withdrawal liability disputes.

In this episode, Justin Alex and Adam Scoll discuss the U.S. Department of Labor’s recently issued proposed regulation regarding ERISA fiduciary duties in selecting designated investment alternatives offered under participant-directed defined contribution plans, such as 401(k) plans. They examine the parameters of the proposal’s safe harbor, which reinforces ERISA’s focus on process over outcomes and highlights six key factors for fiduciary consideration when selecting designated investment alternatives. The proposal is designed to facilitate the inclusion of alternative assets within designated investment alternatives.

In the next episode of our ongoing series on withdrawal liability, Neil Shah and Justin Alex are joined by Adam Scoll to explore how the withdrawal liability of a private investment fund’s portfolio company can extend to the fund itself (and potentially others). They discuss the “trade or business” and “common control” tests, the impact of the Sun Capital and Longroad decisions, and how fund structure, governance, and fee arrangements can influence exposure. The conversation also highlights practical considerations for diligence, deal structuring, and risk management, and why active oversight and ownership levels can have unintended consequences for funds and their advisors.

In the second part of their discussion, Neil Shah and Rob Projansky take a closer look at what happens when a Section 4204 transaction doesn’t go as planned. Together, they explore how courts interpret the statute’s requirements, the risks that arise when parties miss key steps, and the potential consequences for both buyers and sellers. They also discuss practical strategies for managing these risks, how staged transactions can complicate the analysis, and why parties may choose not to rely on Section 4204 in certain situations.

In this first installment of a two-part conversation, Neil Shah and Rob Projansky unpack one of ERISA’s most talked-about “cheat codes”: Section 4204. They explain how a properly structured asset sale can avoid triggering withdrawal liability, why the rule exists, and the three core pillars that must be satisfied, including contribution continuity, secondary liability, and bonding requirements. The episode also explores the roles of buyers, sellers, and plans in navigating these transactions, and why careful drafting and timing are critical.

In the second part of their discussion on bankruptcy and withdrawal liability, Neil Shah and Daniel Desatnik examine what plans can recover on withdrawal liability claims in bankruptcy and how debtors may push back. Listen as they cover interest, fees and present value calculations, administrative and priority disputes, distressed employer defenses, third-party releases and successor liability risks in asset sales. For multiemployer plans and their advisors, they also highlight how timing, strategy and careful attention to plan terms and court filings can materially affect recovery.

In this first episode of a two-part conversation, senior counsel Neil Shah is joined by partner Daniel Desatnik of our Bankruptcy and Restructuring Group to examine how withdrawal liability claims change when bankruptcy enters the picture. Together, they discuss the automatic stay, arbitration versus bankruptcy court, proof of claim strategy, priority and administrative expense issues, and the practical steps plans should take to protect their rights. They also highlight strategic considerations and edge cases that can significantly affect recovery.

What happens at the bargaining table may lead an employer to close a facility, exit a line of business, go non-union, or opt for an entirely different compensation mix for its employees. All of these can trigger the employer's obligation to pay withdrawal liability. In this episode of our multi-part series on withdrawal liability, senior counsel Neil Shah and partner Josh Fox unpack the ways in which withdrawal liability surfaces in labor negotiations and what employers can do about it.

In the second part of a two-episode segment, senior counsel Neil V. Shah and partner Anthony Cacace walk through the five additional federal pathways that can extend withdrawal liability beyond the withdrawing employer. Together, Neil and Anthony cover single employer, alter ego, successor, evade-or-avoid, and combined theories of liability, explaining how plans build their cases to hold others liable under these theories and why these concepts matter in the real world.

Withdrawal liability can reach far beyond the withdrawing employer. The most common way a non-employer becomes liable is through controlled group liability. In the first episode of this two-part series, senior counsel Neil Shah and partner Anthony Cacace explain how controlled group rules work, why they often catch businesses off guard, and how liability can extend across affiliated entities, and even to individual owners.

In the second episode of their multipart series on withdrawal liability, senior counsel Neil Shah and partner Justin Alex walk through the various deadlines that apply in the withdrawal liability lifecycle, from a plan’s initial notice and demand to an employer’s review, arbitration, and potential litigation. They explain why these timing rules matter, how they affect employers, plans, and actuaries alike, and the potential risks of missing deadlines.

Next week, the Supreme Court will hear oral argument in its first withdrawal liability case in 30 years. In this first installment of a multi-part series, senior counsel Neil Shah and partner Justin Alex explain what withdrawal liability is, why it matters, and the key considerations to look out for going forward.

In this episode of The Proskauer Benefits Brief, David Teigman, partner in the Tax Department and a member of the Employee Benefits & Executive Compensation Group, Josh Apfelroth, partner in the Private Equity and Mergers & Acquisitions Group and Nick LaSpina, senior counsel in the Employee Benefits and Executive Compensation Group discuss shareholder activism in the public company context and more specifically within the framework of executive compensation. Because executive compensation can be a hot‑button topic for shareholders and can be implicated in a variety of activist situations, be sure to tune in for the latest insights into these matters.

In this episode of The Proskauer Benefits Brief, David Teigman, partner in the Employee Benefits and Executive Compensation Group, Simon Sharpe, partner and member of our Private Equity and Mergers & Acquisitions groups and Nick LaSpina, senior counsel in the Employee Benefits and Executive Compensation Group discuss rep and warranty insurance (RWI) in the mergers and acquisitions context. They also focus on certain aspects of this insurance product as it relates to executive compensation and employee benefits matters. For the last 10 years, we have only seen the use of this insurance product proliferate, so be sure to tune in as these issues will continue to be highly relevant in any transactional practice.

In this episode of The Proskauer Benefits Brief, Proskauer partners Ira Bogner and Adam Scoll and law clerk Tanusha Yarlagadda discuss the Department of Labor’s final ESG rules issued on November 22, 2022, and how those rules affect the consideration by ERISA fiduciaries of environmental, social, and governance or “ESG” factors when making investment decisions and exercising shareholder rights, such as voting proxies.  Although these final rules generally became effective on January 30, 2023, they are currently being challenged both in the courts and in Congress.