A Benefits Attorney’s Role in Corporate Transactions: Part 1


Michelle Capezza, Member of the Firm in the Employee Benefits and Health Care & Life Sciences practices, in the firm’s New York office, authored an article in Law360, titled “A Benefits Attorney's Role in Corporate Transactions: Part 1.” (Read the full version – subscription required.)

Following is an excerpt:

A corporate transaction often requires employee benefits and executive compensation attorneys to utilize all aspects of their knowledge in the field in order to review the transaction parties' current arrangements, assess and address explicit and potential liabilities and advise on program structures post-transaction.

The goal of this article, appearing in two parts, is to assist benefits attorneys in their approach to a corporate transaction and reference common issues that may arise, which will require their competencies.

It may also assist attorneys from other practice areas to identify employee benefits and executive compensation issues in a transaction and the appropriate time to engage further review by a benefits attorney practitioner who specializes in these issues.

The first part of this two-part article will address some preliminary issues for benefits attorneys to consider in the context of a corporate transaction, including the due diligence process and identification of plan-related liabilities.

The second part will address treatment of benefit plans, integration issues, the purchase agreement, and will discuss other transaction-related agreements.

The following, together with the second part, is meant to serve only as an outline of common employee benefits and compensation issues that may arise in a corporate transaction and to assist the benefits attorney — or the practitioner who isn't a benefits attorney —  in identifying risks and liabilities associated with the plans, programs, and arrangements in a transaction.

More complex or nuanced transactions may raise additional considerations and liabilities.

The key is to identify all of the relevant plans programs and arrangements; assemble the appropriate parties to provide a thorough review and analysis of each one so that transaction agreements can be properly tailored; ensure that potential and existing liabilities are addressed; and that any related plans, documents, and agreements impacting the employees can be amended or prepared so that the transaction is a success.