ERISA and Executive Compensation Litigation: Best Practices for Anticipating and Avoiding Lawsuits

Identifying Vulnerabilities in Plan Drafting and Administration and Bolstering Potential Litigation Defenses

Recording of a 90-minute premium CLE webinar with Q&A

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Conducted on Wednesday, February 13, 2013

Recorded event now available

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Course Materials

This CLE course will provide ERISA counsel with a guide to avoiding common errors in drafting and administering executive compensation plans. The panel will outline best practices for navigating complex issues and potential hazards involved in ERISA litigation.


Company benefits and executive compensation practices continue to be at the forefront of class action and individual lawsuits. Stakes are high: pension plan assets alone have been estimated at $10 trillion nationwide.

Executive compensation practices are the subject of innovative plaintiff suits. "Say-on-pay” litigation has exploded over the last year. Businesses must be vigilant to defend their practices and ensure compliance with the law.

Counsel to employers defending against current and potential lawsuits must avoid common errors in business procedures, ensure top notch recordkeeping and administration, and thoroughly review outside provider contracts.

Listen as our panel of experienced ERISA litigators provides strategies for counsel to company benefits advisors to implement practices to avoid, and as necessary to navigate, complex issues and new hazards affecting employee benefits plans and executive compensation. The panel will discuss say-on-pay vote-related lawsuits and employee benefits that can inadvertently trigger ERISA obligations.



  1. Best Practices for Avoiding Class Action Executive Compensation Litigation Involving:
    1. Negative Say-on-Pay Votes
    2. Clawbacks
    3. 162(m) Compliance
  2. Best Practices for Structuring Plans and Agreements to be ERISA Plans
    1. Advantages of ERISA in Litigation
    2. How to Ensure ERISA Plan Status
  3. Best Practices for Structuring Retirement Plan Administration to Reduce Liability Exposure
    1. Confine Liability Exposure to Selected Committee
    2. Protect Board and Company from Fiduciary Status
    3. Avoid Insiders Involvement in Selection of Investment Options
  4. Best Practices for Avoiding Discovery in ERISA Litigation
    1. Careful Compilation of Administrative Record
    2. Avoid Conflict of Interest
    3. Avoid Inconsistent Treatment and Other Improprieties
    4. Beware of Fiduciary Exception to Attorney Client Privilege
  5. Best Practices for Prevention of Forum Shopping by Plaintiffs
    1. Lack of Federal Statute of Limitations for Non-Fiduciary Actions
    2. Use of Contractual Limitations Period to Create Uniform Limitations Period
    3. Use of Contractual “Accrual” Trigger to Prevent Aged Claims
  6. Best Practices for Reducing Liability of Plan Fiduciaries for Acts of Recordkeepers
    1. Liability of Plan Fiduciary for Recordkeeper and Other Service Provider Actions
    2. Importance of Review of Services Agreement
    3. Importance of Review of Software Used for Benefit Calculations
  7. Best Practices for Avoiding Class Action Lawsuits Based on New Fee Disclosure Regulations


The panel will review these and other key questions:

  • What kind of compensation drafting is more likely to avoid negative shareholder say-on-pay votes?
  • How should plan administration be structured to reduce exposure to ERISA fiduciary liability?
  • What are the often ignored, but critical, fee disclosures required under new Department of Labor regulations to avoid a prohibited transaction?
  • How should the administrative record be compiled in a benefit denial review?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Miriam (Dusty) M. Burke
Miriam (Dusty) M. Burke

Vinson & Elkins

Her work encompasses all facets of employee benefits and executive compensation for a broad base of clients, including...  |  Read More

Shane M. Tucker
Shane M. Tucker

Vinson & Elkins

His practice area involves a variety of executive compensation and employee benefits matters. A significant portion...  |  Read More

Sean Becker
Sean Becker

Vinson & Elkins

He advises clients regarding all phases of the employment relationship and represents employers before state and...  |  Read More

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