Employee Benefits & Executive Compensation

Keeping up with the dizzying pace of change in employee benefits and executive compensation can be overwhelming. Fortunately, Brownstein Employee Benefits and Executive Compensation Group dedicates its resources to staying on top of the myriad issues for you. 

We will work with your benefits personnel, offering a strategic partnership that integrates with your business structure and goals. We help clients stay ahead of conflict by advising on the implementation of strategies to insulate employer assets and prevent benefits-related disputes and serve as a sounding board for new ideas and counsel clients on the day-to-day elements of their employee benefits programs. 

Our clients range from Fortune 100 companies to family-owned businesses to entrepreneurial start-ups. We have extensive experience with the full gamut of legal, administrative and fiduciary matters arising from the design, implementation and operation of equity-based and deferred compensation, qualified retirement, welfare, fringe and multiemployer plans and trusts, and compensation and payroll practices.

Our services also include advising clients on benefits issues that arise in corporate transactions and restructurings, including negotiating appropriate representations, warranties and covenants, conducting due diligence before and during the transaction to resolving post-closing benefits issues, liability transfers, plan amendments and general day-to-day plan administration. Frequently, we also represent single and multiemployer plans, their sponsors and fiduciaries in audits and investigations by the Internal Revenue Service, U.S. Department of Labor and the Pension Benefit Guaranty Corporation.

When it’s needed, we have extensive litigation and disputes resolution experience, ranging from representing clients in claims involving ERISA’s fiduciary duty and prohibited transaction provisions to sophisticated issues revolving around Taft-Hartley plans.

Representative Matters
  • Obtained judgment after trial for full amounts owed including delinquent contributions, liquidated damages, interest, attorney’s fees and audit fees. Trustees of Plumbers and Pipefitters Union Local 525 Health and Welfare Trust and Plan v. Sotelo, 2018 WL 3240959 (D. Nev. July 3, 2018).

  • Obtained over $1 million judgment against alter ego entity of employer who failed to pay required employee benefit contributions. Board of Trustees of Teamsters Local 631 Security Fund for Southern Nevada v. Lightning Exhibits, LLC, No. 2:16-cv-03032, 2018 WL 4566668 (D. Nev. September 24, 2018).

  • Obtained over $1 million judgment against alter ego entity of employer who failed to pay required employee benefit contributions. Board of Trustees of Teamsters Local 631 Security Fund for Southern Nevada v. Lightning Exhibits, LLC, No. 2:16-cv-03032, 2018 WL 4566668 (D. Nev. September 24, 2018).

  • Counsel to Canyon Bakehouse in its $205M sale to Flower Foods, one of the largest producers of packaged bakery foods in the country. We advised on the mergers and acquisitions, employee benefits and executive compensation, labor law, intellectual property and real estate aspects of the transaction. The firm’s role in the deal highlights our multidisciplinary expertise and our footprint in the natural foods industry.

  • Obtained judgment against employer for withdrawal liability on behalf of pension plan. Trustees of the Plumbers and Pipefitters Union Local 525 Health and Welfare Trust and Plan v. Southwest Air Conditioning, Inc., 2012 WL 6096672 (D. Nev. December 4, 2012).

  • Obtained judgment against employer for withdrawal liability on behalf of pension plan. Trustees of the Plumbers and Pipefitters Union Local 525 Health and Welfare Trust and Plan v. Southwest Air Conditioning, Inc., 2012 WL 6096672 (D. Nev. December 4, 2012).

  • Successfully defended employee benefit fund against a hospital’s $750,000 ERISA benefit claim. We prevailed on a motion for summary judgment by demonstrating that the underlying patient was not eligible for benefits at the time of treatment.

  • Successfully defended employee benefit fund against a hospital’s $750,000 ERISA benefit claim. We prevailed on a motion for summary judgment by demonstrating that the underlying patient was not eligible for benefits at the time of treatment.

  • Obtained a $1.9M judgment against employer, alter ego company and owner/fiduciaries who failed to pay their employees’ fringe benefits. Board of Trustees of the Plumbers and Pipefitters Union Local 525 Health and Welfare Trust and Plan v. Security Plumbing & Air Conditioning, 2017 WL 923913 (D. Nev. March 8, 2017).

  • Counsel to one of the largest health insurance companies in the country in a lawsuit alleging violations of the Sherman Act and Colorado Antitrust Act. We asserted counterclaims under the Sherman Act, Colorado Antitrust Act, Colorado Consumer Protection Act, and ERISA, in addition to various tort claims. The case was ultimately settled on favorable terms for our client.

  • Successful defense of health plan from participant claim for benefits. Glasco v. Employee Benefit Management Services, No. A15-719199-C (Nev.Dist.Ct. Aug. 31, 2016).

  • Successful defense of health plan from participant claim for benefits. Glasco v. Employee Benefit Management Services, No. A15-719199-C (Nev.Dist.Ct. Aug. 31, 2016).

  • Successfully defended labor organization against a former member in a federal action alleging multiple discrimination claims and, simultaneously, in a proceeding in front of the Nevada Local Government Employee-Management Relations Board (“EMRB”). We prevailed in the EMRB Proceeding after participating in an administrative hearing and in the federal action by obtaining summary judgment. The labor organization was awarded attorneys’ fees in the federal proceeding as a prevailing defendant in a civil rights action.

  • Counsel to Gaiam in the $145.7M sale of its branded fitness equipment and apparel business to Sequential Brands and Fit for Life.

  • Counsel to Ergentus Emergency Physicians in its merger with U.S. Acute Care Solutions, a portfolio company of Welsh, Carson, Anderson & Stowe.

  • Employee benefits counsel to Pioneer Group in the sale of Bronco Billy's Casino and Hotel in Cripple Creek, Colorado.

  • Counsel to Gilbert Hospital, a general acute-care hospital based in Gilbert, Arizona in its merger with Florence Hospital at Anthem pursuant to a confirmed Chapter 11 plan of reorganization. We advised on all aspects of a sophisticated merger transaction, including transition of the two hospitals under joint ownership and operation, coordinating employment and equity compensation documents for employees, and identifying and resolving health care regulatory aspects of the foregoing.

  • Counsel to MGM in the sale of Circus Circus Reno’s assets and MGM’s 50% equity interest in Silver Legacy Resort Casino Reno, as well as the sales of the Gold Strike Hotel & Casino and the Railroad Pass Hotel & Casino.

  • Counsel to closely-held real estate investment company (REIT) in the design of an investment proceeds sharing program to be exempt from IRC 409.

  • Counsel to an oil & gas company in the establishment and design of an ERISA-compliant and IRC 409A-exempt severance compensation program in connection with reduction in force.

  • Obtained judgment for delinquencies, interest, liquidated damages and attorney’s fees against delinquent employer and its owner, individually, for failing to pay employee benefits on behalf of employer’s own employees. Board of Trustees of Const. Industry and Laborers Health and Welfare Trust v. Collins, 2014 WL 4581279, (D. Nev. September 29, 2014).

  • Counsel to a publicly-traded employer on corrections of delinquent distributions from nonqualified deferred compensation plan in accordance with IRC 409A correction procedures.

  • Counsel to Board of Trustees of the Plumbers & Pipefitters Union in obtaining judgment against employer that failed to pay its employees’ fringe benefits.

  • Employee benefits counsel to WealthTouch Holdings, a leading provider of consolidated investment reporting services to ultra-high net worth families, family offices, wealth advisors and foundations, in its sale to Archway Technology Partners, an Indianapolis-based provider of software products and outsourced support services for the investment management and private wealth management industries.

  • Counsel in recovering third party reimbursement owed to single and multiemployer health plans in hundreds of separate matters, including a case recovering 100% of health plan’s lien against third party reimbursement settlement fund plus 100% of attorney’s fees incurred in prosecuting the lien. The Powell Litigation Group v. Peltier, 2013 WL 6978781 (Nev.Dist.Ct.)

  • Counsel to cosmetics and skin care brand Tarte, Inc., a portfolio company of Encore Consumer Capital, in its sale to Japan's KOSÉ Corporation, a Tokyo-based global cosmetics business.

  • Obtained judgments against participants who were ineligible for health plan benefits but erroneously received them. Trustees of the Teamsters Local 631 Security Fund for Southern Nevada v. Beavers, No. 2:13-cv-00824, 2014 WL 1302035 (D. Nev. March 28, 2014)

  • Employee benefits counsel to Victory Park Capital Advisors in the sale of its portfolio company, Global Employment Holdings to TZP Group.

  • Employee benefits counsel to American Medical Response, a subsidiary of Envision Healthcare Holdings, in its acquisition of MedStat EMS, a Mississippi-based ambulance company.

  • Assisted in obtaining judgment against pension plan’s investment manager and investment consultant for overcharging commissions and engaging in prohibited transactions. Trustees of Nevada Resort Ass’n – Int’l Alliance of Theatrical Stage Employees & Moving Picture Mach. Operators of U.S. & Canada Local 720 Pension Trust v. Grasswood Partners, Inc., No. 2:11-CV-00044-MMD, 2013 WL 1249617 (D. Nev. Mar. 27, 2013).

  • A bond held by ERISA employer was found liable for ERISA employer’s debt to multiemployer benefit trust funds and for attorney’s fees in excess of penal sum. Trustees of the Plumbers and Pipefitters v. Pyles, A663410, 2013 WL 6222083 and subsequent order entered on Jan. 28, 2014 (Nev.Dist.Ct.).

  • Obtained judgment against a bond company for ERISA employer’s debt to multiemployer benefit trust funds and for attorneys’ fees in excess of bond limit. Trustees of the Plumbers and Pipefitters v Pyles, No. 12A663410, 2013 WL 6222083 (Nev.Dist.Ct. Oct. 18, 2013)

  • Employee benefits counsel to RGS Energy in its acquisition of Mercury Energy, an east coast solar integrator.

  • Assisted in obtaining judgment against a company created to avoid multiemployer benefit trust fund obligations owed by a prior alter ego company. Trustees of Const. Indus. & Laborers Health & Welfare Trust v. Pro-Cut LLC, No. 2:12-CV-00205-APG, 2013 WL 4049662 (D. Nev. Aug. 9, 2013).

  • Employee benefits counsel to KSL Capital Partners in the sale of five iconic resort properties to TRT Holdings, owner of Omni Hotels & Resorts in a series of five related transactions. The properties included in the sale are Barton Creek Resort & Spa in Austin; La Costa Resort & Spa in Carlsbad; Rancho Las Palmas Resort & Spa in Rancho Mirage, California; Grove Park Inn in Asheville, North Carolina; and The Homestead Resort in Hot Springs, Virginia.

  • Employee benefits counsel to a multi-platform media company in its equity sale to Lee Equity Partners, LLC.

  • Advised tax-exempt organization in the re-design of chief executive’s employment agreement and application of IRC 409A.

  • Served as employee benefits counsel in the $7 million sale of the River Palms Hotel Casino in Laughlin, Nevada to Reno-based M1 Gaming on behalf of Tropicana Entertainment Inc.

  • Served as employee benefits counsel to a healthcare company in a joint venture ownership structure for in vitro fertilization labs.

  • Obtained judgment against employer for withdrawal liability on behalf of pension plan. Trustees of the Plumbers and Pipefitters Union Local 525 Health and Welfare Trust and Plan v. Southwest Air Conditioning, Inc., 2012 WL 6096672 (D. Nev. December 4, 2012).

  • Advises trustees of public pension fund on fiduciary duties.

  • Provided ERISA and employment advice in connection with Vail Resorts, Inc.'s $63 million acquisition of Northstar-at-Tahoe Resort in California.

  • Counsel to Graham Packaging Company, L.P. in a $568 million strategic acquisition of another manufacturer and supplier. In the transaction, Graham Packaging Company acquired all of the limited partnership units of the target company from the company's limited partners and all of the stock of each of the company's three corporate general partners from their stockholders. A manufacturer and supplier of technology-based, customized blow molded plastic containers for the branded food and beverage, household, personal care/specialty and automotive lubricants product categories, Graham Packaging Company is a portfolio company of Blackstone Capital Group.

  • Advised the sponsor of a tax-qualified defined benefit pension plan and SERP regarding issues related to their decision to discontinue future benefit accruals. Brownstein drafted the related documents, including plan amendments, enacting resolutions, participant communications and 204(h) notice.

  • Successfully defended a manufacturing company in a U.S. Department of Labor investigation/audit of group health plan compliance with ERISA, including HIPAA, WHCRA and other applicable laws. The investigation was closed after several of the plan's insurers made revisions to their participant disclosure documentation. No fines or penalties were assessed.

  • Advised a publicly-traded gaming client on self-correcting distribution errors from its nonqualified deferred compensation plan utilizing the IRS' 409A Correction Program as described in IRS Notice 2008-113.

  • On behalf of a retail client, negotiated service provider and trust agreements and related documents in connection with the transfer of its 401(k) plan from one third-party administrator trustee to another.

  • Represented Dividend Capital Total Advisors in developing a joint venture platform for fund formation. Brownstein also handled the employee equity incentive package and tax matters related to the transaction.

  • Completed the application package and negotiated plan document issues with the IRS to secure a letter of favorable determination for the qualified defined benefit pension plan sponsored by a manufacturing company.

  • Represented Vail Resorts, Inc. in its $40.5 million acquisition of Colorado Mountain Express, a resort ground transportation business. Brownstein also handled the related real estate, tax, environmental, ERISA and employment aspects of the transaction.

  • Hartford Fire Insurance Company v. Trustees of the Construction Industry and Laborers Trust Funds, 125 Nev. 16 (2009). ERISA trust funds have standing to assert Little Miller Act bond claims; ERISA trust funds were not required to provide prior notice to general contractor of claim for subcontractor's delinquent trust contributions, owed under Nevada's general contractor liability statute, unlike Little Miller Act bond claims.

  • Janis Carmona v. Judy Carmona, 544 F. 3d 988 (9th Cir. 2008). ERISA preempts efforts by pension plan participant's eighth wife (and widow) to take survivor annuity away from seventh wife, who was married to the participant at the time of his retirement.

  • Trustees of the Utah Carpenters' and Cement Masons' Pension Trust v. New Star/Culp, 2009 WL 321573 (D. Utah). Employer waived all withdrawal liability defenses by failing to arbitrate its claim that it had not withdrawn under the construction industry rules; employer's counterclaim against plan fiduciaries for alleged failure to investigate circumstances of withdrawal also had to be arbitrated, and was not timely raised in any event.

  • Trustees of the Construction Industry and Laborers Health and Welfare Fund et al. v. Redland Insurance [Summit Landscape] et al., 460 F. 3d 1253 (9th Cir. 2006). ERISA plan can recover paralegal fees and online research costs as attorneys' fees under ERISA if billing separately for such items is consistent with standard billing practices of local legal market; lower court decision disallowing all paralegal fees and online charges is reversed.

  • Defended Policy Studies, Inc. in an ERISA-related lawsuit involving a participant and his spouse seeking payment of various benefits from a self-funded ERISA group health plan and clarification of right to future benefits The suit also involved allegations that defendants breached their fiduciary duty, failed to timely provide requested documents, and acted in a retaliatory and discriminatory manner. A bench ruling found in favor of the defendants in all claims.

  • Trustees of the Plumbers and Pipefitters Local 525 v. Developers Surety, 84 P. 3d 59 (Nev. 2004). Trust fund could recover attorneys fees from bonding company in excess of bond amount where bonding company litigated directly against the trust regarding liability.

  • Trustees of the Construction Industry and Laborers Health and Welfare Fund et al. v. Summit Landscape Services et al., 309 F. Supp. 2d 1228 (D. Nev. 2004). ERISA plan can recover contributions from employer and other liable parties, despite employer's claim that employees were not union members and that plan trustee had orally reached an accord and satisfaction: ERISA does not permit unwritten plan obligations.

  • Trustees of the Construction Industry and Laborers Health and Welfare Trust v. Desert Valley Landscape, Inc., 333 F. 3d 923 (9th Cir. 2003). Jurisdiction over ERISA plan's pendent party claims against non-ERISA defendants is constitutional and lower court erred in dismissing the state claims even though ERISA claims were resolved.

  • U.S. Design v. International Brotherhood of Electrical Workers Trust Funds, 50 P. 3d 170 (Nev. 2002). General contractor was liable for unpaid ERISA trust contributions owed by its subcontractor, pursuant to state law, and all trust's attorneys fees, after general contractor lost on summary judgment.

  • Trustees of the Operating Engineers Pension Trust v. Tab Contractors, Inc., 224 F. Supp. 2d 1272 (D. Nev. 2002). ERISA plan cannot be sued by employer under Labor Management Relations Act.

  • Trustees of the Construction Industry and Laborers Health and Welfare Trust v. Desert Valley Landscape, 156 F. Supp. 2d 1170 (D. Nev. 2001). ERISA trust can recover defaulted subcontractor's ERISA plan liability from its general contractor although merits of claim were never proven.

  • United Association v. Grove, Inc., 105 F. Supp. 2d 1129 (D. Nev. 2000). ERISA does not preempt state law allowing benefit plan to recover plan contributions from employer's general contractor.

  • City of Hope v. Teamsters Local 631 Security Fund, 141 F. 3d 1174 (9th Cir. 1998). Unpublished decision: hospital that had received assignment of ERISA claims from patient could not recover money damages in breach of fiduciary duty case, but was limited to equitable relief, and res judicata prevented hospital from bringing separate suit on same claims.

  • Blackwell v. Transamerica Occidental Life, 707 F. Supp. 437 (D. Nev. 1987). Successful suit against ERISA plan administrator for breach of fiduciary duties in failing to maintain eligibility records in a readily transferable form and to take adequate steps to verify eligibility before authorizing coverage and accepting premium payments. According to the court, this case "presented difficult question of first impression".

Meet The Team

Andrew S. Brignone Shareholder T 702.464.7006 abrignone@bhfs.com
Nancy A. Strelau Shareholder T 303.223.1151 nstrelau@bhfs.com
David M. Spaulding Shareholder T 303.223.1241 dspaulding@bhfs.com
Eric R. Burris Shareholder T 505.724.9563 eburris@bhfs.com
Cara R. Sterling Shareholder T 303.223.1141 csterling@bhfs.com
Bryce C. Loveland Shareholder T 702.464.7024 bcloveland@bhfs.com
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