Pension and 401(k) plans are subject to a complex framework of laws which potentially can subject companies to significant liabilities. Planning an integrated approach to successfully navigate these rules can significantly reduce a company’s risk. Our pension investment asset management practice assists plan sponsors with all aspects of their pension investments, including investment charters and policy statements, service provider engagements (investment advisers and investment consultants), traditional investment programs (401k plans, 403(b) plans, model portfolio programs, targeted date programs, etc.) and alternative investments, such as hedge funds, private equity funds, real estate funds, swaps and other nontraditional investments, both for traditional pensions and executive compensation plans.
We take a team approach that uniquely combines ERISA, investment management, securities and tax expertise to comprehensively address the issues (including latent, future issues) that arise at the complex intersection of ERISA, the Investment Advisers Act, the Investment Company Act and tax law. Our ERISA attorneys work with our Investment Management group and tax attorneys to provide specialized investment-related legal services and advice to plans and plan sponsors. Our goal is to enhance our pension clients’ investment programs, serving as a value-add to our clients with respect to their investments and investment activities, going well beyond, and complimenting, traditional ERISA representation in this area.
While our practice focuses on ERISA pensions, we also have substantial experience represent non-ERISA governmental plan investors, such as state pension plans, in connection with their investment management activities. Many of these plans face issues similar to ERISA plans under state law. We are also familiar with state and municipal plan issues unique to governmental plans, and we understand how these issues impact our clients' investment activities. In addition, we often find that our governmental plan clients benefit from our assistance in developing efficient and standardized procedures for the legal review of alternative investments.
- Model Documents
We have developed sophisticated model investment committee charters, investment policies and investment management agreements for pension plans that reflect our industry knowledge and specialization on the employer side of the investment equation. We assist fiduciaries by providing and adapting these charters, policies and agreements to our clients’ particular circumstances.
- Market Insight
Our daily experience in negotiating with investment consultants, investment advisers and fund managers gives us a clear understanding of the maximum levels of protection and specialized rights available to our clients in the current market. Our market familiarity provides working credibility that not only unlocks advantages for our clients but also speeds the process of arriving at a final agreement.
- Tax Efficiency
Because our team approach includes tax knowledge and experience specific to investments, we optimize results in negotiating the structure and terms of alternative investments (e.g., private equity or hedge funds, collective trusts or swaps). Among other things, we evaluate tax “drag” on the return, assisting our clients to understand its effects and seeking to negotiate around it where possible.
- Investment Review
Given the critical importance of procedural due diligence under ERISA, we frequently provide clients with investment review file memos that efficiently document the due diligence process. Our services are designed to provide and document our clients’ legal due diligence, thereby enhancing our clients’ investment fiduciaries from potential fiduciary liability. We not only provide comprehensive legal reviews, but we also work with our clients to evaluate potential investment issues identified in those reviews and to improve the substantive terms of the investment based on those reviews.
- Alternative Investments
We also routinely assist clients who invest in private equity funds, real estate funds and hedge funds, either directly or through swaps or other arrangements. These private funds have complex structures and, in many cases, numerous internal conflicts of interest, layered fees and hidden risks. Our legal review, in conjunction with our market insights and experience representing fund clients enables us to identify these conflicts, fee layers and risks buried in the “legalese” in the documents. We use our reviews to help our clients avoid suspicious investments and investment practices, negotiate out of unnecessary fees and expenses and improve the terms of their investments.