We have substantial experience representing fiduciaries, plan administrators and plan sponsors in matters involving the U.S. Department of Labor—the governmental entity charged with enforcing the fiduciary provisions of ERISA. Our attorneys have represented fiduciaries in over 100 matters involving Department investigations and audits. Based on our consistent dealings with the Department and its investigators we have developed a reputable and amicable working relationship.

Practice Highlights

Below is a list of illustrative matters involving our representation of fiduciaries, plan administrators and plan sponsors in Department investigations under Title I of ERISA:

• Represented eight (8) different fiduciaries in a series of Department investigations in connection with plan investments in hedge funds and theft by a broker-dealer where the Department closed its investigation without further action against the fiduciaries;
• Represented fiduciary in the Department’s investigation into whether the fiduciary violated Title I of ERISA based on decision-making protocol and procedures used in determining asset allocation and making investment decisions. We worked closely with the Department and, by letter, the Department closed its investigation without further action;
• Represented plan administrator in a Department audit concerning a Form 5500 filing and the accountant’s work papers. We worked closely with the Department to remedy the deficiencies of the Form 5500 and the accountant’s work papers and re-filed the Form 5500. The Department closed the audit without further action;
• Represented plan sponsor in the Department’s investigation into the employee benefits aspects of a merger transaction. We produced documents, met with Department representatives approximately four times and submitted written memoranda. By letter, the Department closed its investigation without further action;
• Represented fiduciary in the Department’s investigation into investment fees where, upon agreement, the plan retained an independent fiduciary to evaluate the reasonableness of fees paid. We submitted the independent fiduciary’s written analysis and opinion to the Department and, by letter, the Department closed its investigation without further action;
• Represented several fiduciaries in Department investigations under Title I of ERISA relating to the prudence of the plan’s investments. We produced documents to the Department, met with Department representatives and the Department conducted on-site reviews of the plans. By letters, the Department closed its investigations without further action;
• Represented fiduciary in a Department investigation under Title I of ERISA in connection with the plan’s investment in hedge funds and private equity. We worked closely with the Department and the Department undertook a detailed review. By letter, the Department closed its investigation without further action;
• Represented fiduciary in a Department investigation involving fiduciary responsibility and a service provider’s dishonesty and achieved a significant reduction in the proposed penalty with the filing of restated financial statements. By letter, the Department closed its audit without further action;
• Represented plan administrator in a Department audit involving fiduciary obligations and the Department’s rejection of Form 5500 and achieved a significant reduction in proposed penalty by demonstrating how the accountant’s methodology of testing employer payroll records satisfied ERISA and generally accepted auditing standards;
  (Read More)

• Represented plan sponsor in a Department investigation under Title I. We produced documents and worked closely with the Department to respond to additional information requests. By letter, the Department closed its investigation without further action;
• Represented certain loyal fiduciaries in a Department investigation involving the mismanagement of millions of dollars of plan assets by a subset of other fiduciaries. We achieved settlement of the investigation without penalty to our innocent fiduciaries;
• Represented several different fiduciaries involving random and routine Department audits. We produced documents to the Department and upon completion the Department issued letters closing the audits without further action against the plan;
• Represented plan administrator in a Department audit of the plan accountant’s work papers. After the production of documents and a meeting with the Department, the matter was closed without further action;
• Represented fiduciary in connection with a Department investigation into whether fiduciary violated Title I based on a significant investment loss in connection with the plan’s hedging investments. We produced documents to the Department, met with Department representatives and the Department conducted an on-site review of the plan. By letters, the Department closed its investigations without further action;
• Represented fiduciary in connection with a Department investigation under Title I involving whether an investment was prudent, whether the fees were reasonable and whether a conflict of interest existed with the investment professional that recommended the investment and that was paid, in part, based on an incentive fee. We produced documents to the Department and met with Department representatives. As part of an agreement with the Department, the fiduciary retained an independent fiduciary to analyze the investments and provide an opinion on prudence and investment fees. After submission of the independent fiduciary study, the Department, by letter, closed its investigation without further action; and
• Represented plan administrator in a U.S. Department of Labor investigation under Title I. We produced documents to the Department and the Department focused on investment service provider arrangements and Form 5500s. The Department interviewed plan administrator. By letter, the Department closed its investigation without further action.

In addition, we have experience representing fiduciaries in various other contexts including:

• Responding to subpoenas from the U.S. Federal Bureau of Investigation (FBI). We assisted a fiduciary respond to an FBI subpoena pertaining to an investment manager under investigation for paying fees to politicians in exchange for business. We worked with the FBI to produce documents and physical testimony was not required. No further action was taken against the fiduciary; and
• Handling criminal investigations and interviews under Title I of ERISA by the U.S. Department of Labor in conjunction with criminal investigations by the U.S. Department of Justice.