Practices

Michael O’Brien has been practicing in the ERISA/employee benefits area for over twenty years. His practice covers a wide array of ERISA, employee benefits and executive compensation matters.

He regularly advises clients on ERISA matters, with a focus on Title I fiduciary compliance matters. He advises investment managers of “plan asset” funds in regard to their ERISA fiduciary obligations and how to comply with them, their additional ERISA liability exposures, and additional ERISA reporting obligations. He also advises investment managers of private funds in connection with investments by benefit plan investors, including on matters related to the “plan assets regulation” and its “25% test”. Mike represents investment managers in establishing and negotiating separate account arrangements for ERISA and governmental plans, as well as negotiating side letters for fund investments by ERISA and governmental plans. His representation includes advising managers in respect of arrangements with private corporate pension and retirement plans, Taft-Hartley “multiemployer” (union) plans, ERISA “fund of funds”, IRA investors, and governmental and church retirement plans. He regularly negotiates counterparty documents for ERISA funds and accounts, including prime brokerage and ISDA agreements. Mike also regularly represents both lenders and borrowers in respect of ERISA provisions in financing documents.

Mike regularly represents both buyers and sellers in connection with employee benefits and executive compensation matters in mergers and acquisitions. This often includes assisting with the transitioning of benefit plans and compensation arrangements in M&A transactions, as well as advising on the tax considerations of those plans and arrangements (including the golden parachute provisions in Code Sections 280G and 4999). He has also assisted foreign clients with understanding the area of U.S. benefits and compensation and making them work within a multinational organization.

His practice also includes general advice on benefit plans, including their structure, establishment, implementation, operation, amendment and termination. His experience includes advising clients on plan compliance matters, working on correcting non-compliance issues in plans, working with clients on investigations and audits by governmental agencies, advising clients on plan reporting and disclosure matters, and assisting plan sponsors in connection with agreements with plan service providers.

Mike also regularly advises clients in executive compensation matters. He assists public and private clients in preparing equity incentive plans and related award agreements. He advises clients in structuring and drafting deferred compensation arrangements, including compliance with Code Sections 409A and 457A. Mike assists both executives and employers in negotiating employment and other service contracts. He also advises and works with clients on their compensation and benefit structures and arrangements in connection with their plans to go public as well as companies’ IPOs.

Mike is admitted to practice before the courts in New York and is a member of the American Bar Association (section on taxation).

Mike received a J.D. degree from Harvard Law School, cum laude, and a B.S.B.A. from Georgetown University, summa cum laude, where he received the Business School’s Dean’s Award for Academic Excellence and the George Houston Accounting Achievement Award. Prior to attending law school, Mike was an auditor with one of the “big” national accounting firms and a CPA in the state of New York.

Publications