Private Equity Compliance With ERISA: Navigating Manager Fiduciary Duties for Funds Holding ERISA Plan Assets

Impact on Private Investment Funds of New DOL Fiduciary Rule and Sun Capital Pension Withdrawal Liability

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


Conducted on Tuesday, February 28, 2017
Recorded event now available


This CLE webinar will prepare counsel representing private equity funds to meet fiduciary obligations under ERISA that apply to fund managers who are responsible for investing the assets of a fund that holds ERISA plan assets. The panel will particularly focus on the duty to avoid prohibited transactions. The program will cover implications of the DOL fiduciary rule for fund managers as well as the impact on private equity firms of the Sun Capital ruling triggering withdrawal liability for a portfolio company’s union pension obligations.

Description

ERISA imposes fiduciary obligations on funds that hold employee benefit plan assets, including private equity managers responsible for investing fund assets. The DOL’s new fiduciary rule, effective April 2017, subjects a wider group of investment advisers to ERISA fiduciary duties.

The duty to avoid prohibited transactions blocks managers from engaging in transactions with “parties in interest” to the ERISA plan, unless an exemption exists. However, the exemptions are nuanced, and fund managers must proceed carefully when taking advantage of the exceptions.

Last year’s Sun Capital decision has broad implications for private equity funds and their investors. The ruling subjects funds to joint and several liability for the ERISA pension obligations of their portfolio companies.

Listen as our authoritative panel of finance attorneys discusses the fiduciary obligations under ERISA that apply to private equity fund managers responsible for investing the assets of a fund that holds ERISA plan assets. The panel will focus on the duty to avoid prohibited transactions, the implications of the DOL fiduciary rule, and the Sun Capital ruling triggering withdrawal liability for a portfolio company’s union pension obligations.

Outline

  1. ERISA fiduciary duties applicable to private equity managers
    1. Exceptions available to private equity funds
    2. Penalties and personal liability under ERISA
  2. Impact of DOL fiduciary duty rule
  3. Sun Capital impact on portfolio company withdrawal liability for pension obligations

Benefits

The panel will review these and other key issues:

  • What fiduciary duties does ERISA impose on private equity managers who invest fund assets that hold ERISA plan assets?
  • How can fund managers take advantage of the exceptions to the ERISA prohibited transactions obligation?
  • How does the DOL’s fiduciary duty rule apply to private equity fund managers?
  • What are the implications of the Sun Capital ruling on private equity funds and their portfolio companies?

Faculty

Maureen O'Brien, Partner
McDermott Will & Emery, Chicago

Ms. O'Brien advises clients on a broad range of employee benefits matters, including qualified plan design, welfare plan design, employee benefit plan compliance issues, fiduciary matters, multi-employer pension plan issues and nonqualified deferred compensation plans. She advises a wide variety of clients, including public companies, private equity and venture capital funds, and private companies regarding employee benefits issues. She has extensive experience assisting clients with issues affecting employee benefit plans in sales, acquisitions, spin-offs and other corporate transactions, as well as with employee benefits issues arising from restructuring proceedings, including plan terminations.

Todd A. Solomon, Partner
McDermott Will & Emery, Chicago

Mr. Solomon focuses his practice on designing, amending and administrating pension, profit sharing, 401(k), employee stock ownership and 403(b) plans, as well as nonqualified deferred compensation arrangements. He also counsels privately and publicly held corporations and tax-exempt entities regarding fiduciary issues under ERISA, employee benefits issues involved in corporate transactions, executive compensation matters and the implementation of benefit programs for domestic partners of employees. He advises multinational clients on global employee benefits matters and compliance issues. He counsels plan fiduciaries with respect to investment policies, alternative investments, prohibited transaction issues, investment management agreements and payment of expenses from plan assets.


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