ERISA Fiduciary

Mayer Brown has one of the leading ERISA Fiduciary practices in the US, advising fiduciaries on ERISA aspects of investments, regulatory compliance, risk management, enforcement and defense of fiduciary challenges. Mayer Brown has one of the leading ERISA Fiduciary practices in the United States. Our lawyers assist with the structuring and operation of complex institutional investment funds and products. They advise fiduciaries on the ERISA aspects of investments and transactions and on ERISA compliance, risk management, enforcement and regulatory matters, and defend them against fiduciary challenges in the courts.

Mayer Brown’s ERISA Fiduciary lawyers have significant experience in the following areas:

Fiduciary Advice on Trustee and Investment Matters

As part of the ERISA Fiduciary group’s representation of investment plan fiduciaries, advisers and trustees, the group advises financial institutions on the investment of fiduciary assets in affiliated funds and products and non-US managers on the coordination of ERISA requirements with the applicable local regulations. Our group also advises on: compliance with the Department of Labor’s fee and gift disclosure requirements; the impact of the Department of Labor’s proposed expansion of the definition of fiduciary under ERISA; potential fiduciary disqualifications; management of conflicts under ERISA, including use of independent fiduciaries; compliance with prohibited transaction exemptions and reporting and correction of prohibited transactions; fiduciary considerations for ESOPs and employer stock funds; ERISA limitations on fees, expense reimbursement, exculpation and indemnification; the structuring of settlements involving ERISA disputes; the documentation of trust, investment management and other fiduciary relationships; the fiduciary duties of directed trustees and independent fiduciaries under a variety of circumstances; and the fiduciary requirements applicable to government plans.

Advice in Connection with Structuring of Institutional Investment Funds

The ERISA Fiduciary group regularly advises real estate, private equity, infrastructure and hedge fund sponsors on the business and legal aspects of structuring investment funds that are targeted to ERISA and governmental pension plans and other institutional investors, including reliance on exceptions to holding ERISA plan assets. Members of our group have extensive experience with respect to advising clients on emerging products and alternative investment vehicles that are designed to meet the needs of defined contribution plan investors; we participate in industry groups focused on such products and frequently speak at industry conferences on developments in this area.

Structuring and Documenting Investment Products

Our group helps structure and negotiate a variety of investment products and transactions, including liability-driven investment arrangements, fund credit facilities, mortgage loans, financial futures, international currency trading, securities lending, repurchase agreements, asset-backed securities, loan participation and international investments. 

Department of Labor Enforcement and Exemptions

Our ERISA Fiduciary group regularly works with the Department of Labor on behalf of clients in connection with exemptions, interpretations of ERISA and enforcement matters. We have also defended numerous Department of Labor ERISA investigations on behalf of plans, advisers and other fiduciaries and service providers. For example, we have represented investment fund advisers in connection with Department of Labor conflict-of-interest challenges. We have represented government contractors in Department of Labor investigations over plan fees charged to participants. We have also represented financial institutions in connection with the Department of Labor’s investigation into mutual fund market timing practices, the Department of Labor’s enforcement initiative against cross-trading and in preparing comments to the Department of Labor on its class exemption for passive cross-trading.

Additionally, we have represented financial institutions in connection with such matters as: exemptions for transactions to remove distressed assets from ERISA funds; collective fund conversions to mutual funds; cross-trading, investments by index funds in securities issued by the fund manager; the purchase of securities from an underwriting syndicate in which an affiliated broker is a member; the sale of asset-backed securities to plans; and loans to private investment funds that include plan limited partners.

Litigation Risks and Claims

The firm has a significant ERISA Litigation practice that has represented our fiduciary clients in connection with a wide range of private and Department of Labor claims. Our ERISA lawyers have served on the defense team for a number of ERISA class actions involving company stock funds, securities lending, and ERISA plan investments and fee arrangements, including fee sharing arrangements and plan calculation issues. We have also assisted our fiduciary clients in establishing procedures by which to execute their fiduciary duties in a variety of circumstances, establishing policies on ERISA and securities fraud class actions, evaluating their duties and potential liability exposure for investment losses resulting from investments in securities that are the subject of securities fraud claims and fund investments that have gone bad.

Industry Knowledge and Recognition

Mayer Brown’s ERISA lawyers are recognized as leaders in their field, and have been highly praised for their work by Chambers, Legal 500, Best Lawyers and other national publications.

Mayer Brown’s ERISA lawyers are actively involved in industry groups that support the business activities of our clients. Members of our ERISA practice are active members of the Pension Real Estate Association (including serving terms as chair of the Government Affairs Committee of PREA and editor of PREA’s “Washington Update” column), the National Association of Public Pension Attorneys, the Defined Contribution Institutional Investor Association and the Defined Contribution Real Estate Council. In addition, they have served on an ISDA committee to develop form language for ISDA agreements involving ERISA counterparties and on an LSTA committee to address ERISA issues in connection with the syndication of loans to ERISA investors.

We have represented various industry groups including the National Association of Real Estate Investment Managers in connection with SEC regulations relating to the Investment Advisers Act, the Institutional Real Estate Clearinghouse on the establishment of a secondary exchange for the trading of interests in private real estate funds, and the National Council of Real Estate Investment Fiduciaries (NCREIF) on agreements for derivative products based on the widely used NCREIF Property Index.