# EBEClaw.com

> Charles C. Shulman Esq., cshulman@ebeclaw.com T: 201-357-0577 M: 212-380-3834


## Posts

- [IRC § 162(m) Limit on Compensation Deduction in Excess of $1 Million--Expanding Scope](https://ebeclaw.com/irc-%c2%a7162m-limit-on-compensation-deduction-in-excess-of-1-million-expanding-scope/): Compliance Update: The Rapidly Expanding Scope of the IRC §162(m) Limit on Deductibility of Compensation in Excess of $1 Million By Charles C. Shulman, Esq. The Internal Revenue Code § 162(m) $1 Million Deduction Limit if Publicly Held Corporation in the Group. Businesses can usually deduct the full amount of salaries and bonuses they pay to their employees as a necessary business expense. However, Section 162(m) of the tax code creates a massive exception for public companies. It provides that once a “covered employee” (typically a top executive) makes more than $1 million in a single year, the company can […]
- [The Cunningham v. Cornell Burden-Shift and Judicial and Legislative Pushback](https://ebeclaw.com/cunningham-v-cornell-university-shifting-the-burden-in-prohibited-transaction-claims-consequences-for-erisa-401k-class-action-suits-and-latest-developments/): The Cunningham v. Cornell Burden-Shift and Judicial and Legislative Pushback By Charles C. Shulman, Esq. The Supreme Court’s 2025 decision in Cunningham v. Cornell University fundamentally changed ERISA litigation. It shifted the burden of proving exemptions for routine service contracts to plan sponsors. This made it easier for plaintiffs to survive early motions to dismiss. However, 2026 has brought strong pushback against this lowered pleading standard. It’s clear that courts and lawmakers are looking for ways to stop baseless claims. This article explores (i) the practical consequences of the Cunningham burden-shift, (ii) recent judicial efforts to filter meritless claims using […]
- [Mandatory Roth Catch-Up Contributions Took Effect January 1, 2026](https://ebeclaw.com/final-treasury-regulations-on-mandatory-roth-catch-up-contributions-under-secure-2-0/): Mandatory Roth Catch-Up Contributions Took Effect January 1, 2026 By Charles C. Shulman Mandatory Roth catch-up contributions took effect on January 1, 2026, fundamentally changing the operation of age-50 “catch-up” contributions for higher-wage employees. Under final IRS and Treasury regulations implementing SECURE 2.0, catch-up contributions for participants whose prior-year wages exceeded a statutory threshold ($150,000 when first applied in 2026) must be made on a Roth (after-tax) basis. Although Congress originally scheduled this change to apply beginning in 2024, the IRS delayed mandatory implementation until 2026 and provided employers additional time—generally through the end of the 2027 plan year—to complete […]
- ["Affiliated Service Group" Rules](https://ebeclaw.com/affiliated-service-group-rules-for-qualified-plans/): “AFFILIATED SERVICE GROUP” RULES By Charles C. Shulman Printed in 51 Journal of Pension Planning and Compliance, no. 4, at 1 (WK, Winter 2026). This article explains when separate service or management entities are treated as a single employer under Internal Revenue Code § 414(m) for qualified plan and certain welfare plan purposes. It traces the origins of the affiliated service group rules, distinguishes them from ERISA controlled group rules, and provides practical guidance on A-Org, B-Org, and management organization affiliated service groups, including ownership attribution and recent statutory developments. 1. Affiliated Service Group Rules Generally and Background             Under […]
- [ERISA's “Controlled Group” Rules – A Timely Review](https://ebeclaw.com/erisa-controlled-group-rules/): ERISA’s “Controlled Group” Rules – A Timely Review By CHARLES C. SHULMAN, ESQ. Printed in 51 Journal of Pension Planning and Compliance, no. 1, at 1 (WK, Fall 2025) https://tinyurl.com/erisa-controlled-group-rules        This article: explains how controlled-group entities are treated as a single employer under the Code and ERISA for purposes including Title IV liability, qualified plan nondiscrimination, Code § 409A, COBRA, cafeteria plans, and the ACA employer mandate; reviews recent case law and SECURE 2.0 attribution changes effective in 2024; analyzes the parent-subsidiary and brother-sister controlled-group tests with examples; examines complex ownership-attribution rules (including options, spousal and family attribution, and SECURE […]
- [ERISA Fiduciary Advice: The Regulatory Landscape for 2026](https://ebeclaw.com/erisa-fiduciary-advice-the-regulatory-landscape-entering-2026/): ERISA FIDUCIARY ADVICE: THE REGULATORY LANDSCAPE FOR 2026 By Charles C. Shulman Recent court decisions have effectively stopped the Department of Labor’s 2024 Retirement Security Rule from taking effect. Two federal courts stayed the rule, finding that the DOL likely exceeded its authority, and in November 2025 the DOL withdrew its appeal. The Fifth Circuit granted the dismissal, leaving the stays in place and preventing the rule and related PTCE amendments from becoming operative. As a result, fiduciary status for investment advice continues to be governed by the 1975 five-part test and PTCE 2020-02, alongside the SEC’s Regulation Best Interest. […]
- [2026 BENEFIT PLAN COST-OF-LIVING ADJUSTMENTS](https://ebeclaw.com/2026-benefit-plan-cost-of-living-adjustments/): Charles C. Shulman, Esq. 2026 BENEFIT PLAN COST-OF-LIVING ADJUSTMENTS * The chart below summarizes the 2026 cost-of-living adjustments affecting 401(k), defined benefit, ESOP and other retirement plans, IRAs, HSAs, Social Security, PBGC premiums, and related tax and benefit thresholds. These updated limits—issued through IRS guidance, Social Security and PBGC releases, and federal penalty inflation adjustments in the Federal Register—reflect the new contribution caps, compensation limits, savings incentives, and compliance amounts that apply for the 2026 plan and tax year, compare to prior years. See Notice 2025-67, Rev. Proc. 2025-32, Rev. Proc. 2025-19, Social Security Administration News Release, PBGC Premium Rates […]
- [Cunningham v. Cornell and the Rise of Meritless Prohibited Transaction Suits](https://ebeclaw.com/cunningham-v-cornell-and-the-rise-of-meritless-prohibited-transaction-suits/): Cunningham v. Cornell and the Rise of Meritless Prohibited Transaction Suits See updated memo at https://ebeclaw.com/cunningham-v-cornell-university-shifting-the-burden-in-prohibited-transaction-claims-consequences-for-erisa-401k-class-action-suits-and-latest-developments/ By Charles C. Shulman, Esq. In Cunningham v. Cornell University, 604 U.S. 693 (April 17, 2025), the Supreme Court, reversing the Second Circuit, unanimously ruled that plaintiffs alleging prohibited transactions under ERISA §406 need not plead that statutory exemptions under §408 are inapplicable. The Court held that exemptions are affirmative defenses defendants must prove. Plaintiffs need only allege that a plan fiduciary caused the plan to engage in a transaction with a party in interest – such as furnishing goods or services. The burden […]
- [Forfeitures in Qualified Plans: (i) Proposed Regulations; and (ii) Fiduciary Class Action Suits](https://ebeclaw.com/forfeitures-in-qualified-plans/): Forfeitures in Qualified Plans: (i) Proposed Regulations; and (ii) Fiduciary Class Action Suits By Charles C. Shulman, Esq. I. Part 1 – 2023 Proposed Regulations Regarding Forfeitures  2023 proposed regulations regarding forfeitures. The IRS has long permitted using forfeitures of defined contribution plans to pay plan expenses or reduce future contributions (and not just to reduce plan expenses), as long as this is documented in the plan. See, e.g., Rev. Rul. 71-313; Rev. Proc. 2016-51 § 6.02(4)(c); IRS newsletter, Retirement News for Employers (Spring 2010). In February 2023, the IRS issued proposed regulations with specific rules for forfeitures of defined benefit plans […]
- [2025 Executive Order on Democratizing 401(k) Access to Alternative Assets](https://ebeclaw.com/2025-executive-order-on-democratizing-401k-access-to-alternative-assets/): 2025 Executive Order on Democratizing 401(k) Access to Alternative Assets By Charles C. Shulman, Esq. On August 7, 2025, President Trump issued an executive order titled “Democratizing Access to Alternative Assets for 401(k) Investors”, which directs the Department of Labor to revise existing guidance and consider regulatory changes to facilitate alternative asset inclusion in 401(k) plans. On June 3, 2020, under the first Trump administration, the DOL issued an Information Letter stating that ERISA does not expressly prohibit private equity investments within a professionally managed asset allocation fund offered in a 401(k) plan. On Dec. 21, 2021, under the Biden administration, […]
- [Employee Benefit Provisions in the One Big Beautiful Bill Act](https://ebeclaw.com/the-one-big-beautiful-bill-act/): Employee Benefit Provisions in the One Big Beautiful Bill Act By Charles C. Shulman, Esq. Public Law 119-21, 14, H.R. 1, 139 Stat. 72 (July 4, 2024), referred to as the One Big Beautiful Bill Act (the OBBBA), was passed by the Senate on July 1, 2025, approved by the House on July 3, 2025 and signed by President Trump on July 4, 2025. An earlier version of the OBBBA was passed by the House on May 22, 2025, but the Senate version, S.Amdt.2360 to H.R.1, made a number of changes to the earlier House version, and the House then […]
- [Right to a Jury Trial in ERISA Cases](https://ebeclaw.com/right-to-a-jury-trial-in-erisa-cases/): Right to a Jury Trial in ERISA Cases By Charles C. Shulman, Esq. There is a recent trend in some federal cases to allow requests for jury trials for ERISA claims, such as claims for benefits or breach of fiduciary duty claims, even though historically such claims were treated as equitable claims, not entitled to a jury trial. Three district cases allowing jury trials are in the Second Circuit and relate to excessive fee cases.  Jury trial verdicts are unpredictable, particularly in complex ERISA fiduciary cases.  In light of the possibility of a jury trial in excessive fee cases, increased […]
- [Recent Noncompete Clause Developments – 2025](https://ebeclaw.com/noncompete-clause-developments-2025/): Recent Noncompete Clause Developments – 2025 By Charles C. Shulman, Esq. I.          Introduction – FTC Noncompete Ban Stayed; State Law Noncompete Bans or Restrictions The Federal Trade Commission on May 7, 2024 published a ban on almost all noncompete clauses as an unfair method of competition, effective September 4, 2024. However, the U.S. District Court for the Northern District of Texas, in Ryan LLC v. Federal Trade Commission, ruled on August 20, 2024, that the FTC noncompete ban exceeds the FTC authority and the noncompete ban is set aside and may not be enforced against anyone and cannot take […]
- [Cryptocurrency – Fiduciaries to Decide if it is a Prudent 401(k) Investment](https://ebeclaw.com/cryptocurrency-fiduciaries-to-decide-if-it-is-a-prudent-401k-investment/): Cryptocurrency – Fiduciaries to Decide if it is a Prudent 401(k) Investment By Charles C. Shulman, Esq. 1. Under Biden Administration – Presumption of Imprudence of Cryptocurrency Fund for 401(k) Plans CAR No. 2022-01: Presumption of Imprudence on Cryptocurrency for 401(k) Plans. On March 10, 2022, the Department of Labor (“DOL”) issued Compliance Assistance Release (“CAR”) No. 2022-01, cautioning plan fiduciaries to exercise “extreme” care before they consider adding a “cryptocurrency” option to a 401(k) plan’s investment menu for plan participants, and if they do add the cryptocurrency option, they should be prepared for a possible DOL investigation. CAR No. […]
- [Arbitration Provisions in an ERISA Plan Cannot Negate Right to Sue under ERISA in Class Action on Behalf of the Plan](https://ebeclaw.com/arbitration-provisions-in-an-erisa-plan-cannot-negate-right-to-sue-under-erisa-in-class-action-on-behalf-of-the-plan/): Arbitration Provisions in an ERISA Plan Cannot Negate Right to Sue under ERISA in Class Action on Behalf of the Plan Two recent circuit court decisions support the majority of federal circuits, which have held that arbitration provisions in an ERISA retirement plan cannot negate the statutory right under ERISA §502(a)(2) to sue in a class action on behalf of the plan and the plan participants. Arbitration Provisions Govern in Ordinary ERISA Benefit Claims or Other Individual Claims Under ERISA § 503, 29 USC § 1133, and DOL Reg. § 2560.503-1, ERISA claims for benefits must be brought in federal […]
- [Status of DOL Centralized Lost and Found Database Under the SECURE 2.0 Act and Information Collection Requests ​](https://ebeclaw.com/status-of-dol-centralized-lost-and-found-database-under-the-secure-2-0-act-and-information-collection-requests/): Status of DOL Centralized Lost and Found Database Under the SECURE 2.0 Act and Information Collection Requests ​ The SECURE 2.0 Act of 2022 (SECURE 2.0) § 303 enacted ERISA § 523, which directs the Department of Labor (DOL) to establish by 2024 an online searchable database referred to as the Retirement Savings Lost and Found to serve as a searchable lost and found database for qualified defined contribution and defined benefit plans to help contact lost participants and to help former participants or beneficiaries who have lost track of their qualified retirement benefits. There is currently a Pension Benefit […]
- [Code § 409A Nonqualified Deferred Compensation Rules Revisited](https://ebeclaw.com/code-%c2%a7-409a-nonqualified-deferred-compensation-rules-revisited/): An article titled “Code § 409A Nonqualified Deferred Compensation Rules Revisited” by Charles C. Shulman, Esq., was published in the Journal of Deferred Compensation (Wolters Kluwer) in two parts in the Spring 2024 and Summer 2024 issues. I have reproduced both parts of “Code § 409A Nonqualified Deferred Compensation Rules Revisited” at https://ebeclaw.com/wp-content/uploads/2024/08/409A-Outline-Current-ccs.pdf  Code § 409A, enacted in 2004 imposes strict rules on nonqualified deferred compensation arrangements. The IRS issued final § 409A regulations in 2007 and further proposed § 409A regulations in 2016 and other guidance and rulings from time to time. There have been a number of cases regarding […]
- [2024 BENEFIT PLAN COST-OF-LIVING ADJUSTMENTS (with SECURE 2.0 changes)](https://ebeclaw.com/2024-benefit-plan-cost-of-living-adjustments-with-secure-2-0-changes/):     2024 BENEFIT PLAN COST-OF-LIVINGADJUSTMENTS (with SECURE 2.0 changes) Charles C. Shulman, Esq. 11/4/2023 BENEFIT PLAN COST-OF-LIVINGADJUSTMENTS 2023 2024 Qualified Plan Adjustments 402(g) Deferral Limit – Annual limit on pre-taxsalary deferrals to 401(k), 403(b) and 457(b) plans – IRC §§ 402(g)(1), 402(g)(3) & 457(e)(15) $22,500 $23,000 Age 50 Additional Catch-Up Deferrals – Age50 & older “catch-up” deferrals beyond the 402(g) limit above available for401(k), 403(b), & governmental 457(b) plans – IRC § 414(v)(2)(B)(i).Under the SECURE 2.0 Act of 2022 (SECURE 2.0) § 603 the catch-upfor highly-compensated employees (in the previousyear) to a qualified plan (401(k), 403(b) & 457(b)) will need […]
- [Affordable Care Act Employer Mandate Penalties and Solutions, Individual Coverage HRAs and Health Plan Nondiscrimination Rules](https://ebeclaw.com/affordable-care-act-employer-mandate-penalties-and-solutions-individual-coverage-hras-and-health-plan-nondiscrimination-rules/): Affordable Care Act Employer Mandate Penalties and Solutions, Individual Coverage HRAs and Health Plan Nondiscrimination Rules CHARLES C. SHULMAN, ESQ.   The IRS has been issuing preliminary penalty calculations to employers relating to the Affordable Care Act Employer Shared Responsibility Mandate (the “Employer Mandate”). The following is a review of the issues and solutions for employers regarding the Employer Mandate, interaction with new individual coverage HRAs (ICHRAs), health plan nondiscrimination rules and related issues Family Health Coverage Must be Offered to Substantially all Full Time Employees – But Most of the Premiums Can be Shifted to the Employees Penalty on […]
- [Withdrawal Liability Actuarial Assumptions](https://ebeclaw.com/withdrawal-liability-actuarial-assumptions-did-new-proposed-pbgc-regs-get-it-wrong/): Journal of Deferred Compensation – Vol 28, No 2, Winter 2023 Withdrawal Liability Actuarial Assumptions              CHARLES C. SHULMAN, ESQ.[1]  [Updated January 2026] Actuarial interest rate assumptions for ERISA withdrawal liability for employers withdrawing from multiemployer pension plan (i) are made by the plan actuary using reasonable actuarial interest rate assumptions (which may sometimes be termination rate assumptions or ongoing plan assumptions or a combination depending on what is reasonable for the plan) under ERISA § 4213(a)(1), or (ii) once PBGC regulations under ERISA § 4213(a)(2) are issued, the plan actuary must comply with such regulations in determining the actuarial […]
- [Carried Interest Holding Periods](https://ebeclaw.com/carried-interest-holding-periods/): 8/5/22 Carried Interest Holding Periods – Further Restrictions on Carried Interest Taken out of Pending Inflation Reduction Act of 2022 Charles C. Shulman, Esq.   As discussed in my earlier post on Profits Interest at https://ebeclaw.blogspot.com/2022/03/profits-interests.html , profits interests have become an increasingly popular type of equity-based award if the entity is taxed as a partnership, as they avoid income tax or FICA tax on grant and vesting, and yield long-term capital gains on sale if certain requirements are met. However, in 2017 this was limited in the case of profits interests (carried interest) for professional investors and real estate development for rental or […]
- [More MEPs - Less Bad Apples](https://ebeclaw.com/more-meps-less-bad-apples/): Multiple Employer Plans under the SECURE Act of 2019 and Proposed Regulations re Exemption from One Bad Apple Rule Charles C. Shulman, Esq., See article in pdf format at https://ebeclaw.com/wp-content/uploads/2022/05/More-MEPs-Less-Bad-Apples-48-JPPC-Fall-2022.pdf Multiple Employer Retirement Plan Generally Multiple employer plans, i.e., plans that are maintained by more than one employer that are not collectively bargained, are subject to the more restrictive requirements under Code §413(c). Under Code §413(c), a multiple employer plan is treated as if all the employees were employed by a single employer for the following purposes: age and service requirements of Code §410(a), the exclusive benefit rule of Code §401(a)(2); […]
- [Profits Interests](https://ebeclaw.com/profits-interests/)
- [Successor Liability for Pension and Other ERISA Obligations](https://ebeclaw.com/successor-liability-for-pension-and-other-erisa-obligations/): Successor Liability for Pension and Other ERISA Obligations 49 Compensation Planning Journal No. 9 p. 32 (Sept. 2, 2021) See pdf of article at https://ebeclaw.com/wp-content/uploads/2022/02/Successor-Liability-in-Pension-ERISA-and-Other-Obligations-with-2022-addendum-49-TMCPJ-09-9-3-2021.pdf Charles C. Shulman, Esq.* One of the murky but interesting aspects of ERISA law — which has been revisited from time to time by the federal courts — has been the extent to which liability under ERISA will carry over to successors who purchase the assets rather than the stock of the business. This article explores the current state of the law regarding successor liability under ERISA. General Common-Law Rules of Successor Liability – Continuity of […]
- [Rev. Proc. 2021-30 (EPCRS Update)](https://ebeclaw.com/rev-proc-2021-30-epcrs-update/): Rev. Proc. 2021-30 (EPCRS Update) Charles C. Shulman, Esq. Rev. Proc. 2021-30 updates the IRS Employee Plans Compliance Resolution System (EPCRS) Program, with the following changes to the EPCRS program: (i)  the end of the self-correction period for significant failures is extended by an extra year; (ii) an anonymous VCP with a free VCP pre-submission conference procedure is provided instead of John Doe applications; (iii) the plan sponsor can correct an operational failure under SCP by retroactive plan amendment if the amendment will result in an increase of a benefit, right or feature (BRF) is allowed even if such BRF is not […]
- [Missing Plan Participants – Recent Guidance](https://ebeclaw.com/missing-plan-participants-recent-guidance/): Missing Plan Participants – Recent Guidance Charles C. Shulman, Esq. March 31, 2021(Revised Aug. 2021) A common problem in plan administration is finding missing participants. Sometimes these lost participants simply cannot be located. Other times they can be located but they do not accept distribution packages with respect to their benefits.   Field Assistance Bulletins.  DOL Field Assistance Bulletin 2004-02 stated that certain methods of finding participants be used because they have a high degree of success and are relatively inexpensive. These methods are as follows: (i) certified mail, (ii) plan records of participants in other plans maintained by the employer, […]
- [American Rescue Plan Act of 2021 – Summary of Benefit Provisions](https://ebeclaw.com/american-rescue-plan-act-of-2021-summary-of-benefit-provisions/): March 15, 2021 American Rescue Plan Act of 2021 – Summary of Benefit Provisions Charles C. Shulman, Esq.  Introduction  – The American Rescue Plan Act of 2021 (“ARPA”), H.R. 1319, P.L. 117-2, signed March 11, 2021, which provides COVID-19 relief to governments, businesses and individuals, also provides relief to plan sponsors and participants of employee benefit plans, including: (i) actions to address underfunded multiemployer pension plans; (ii) extended amortization for single employer pension plans; (iii) a 100% subsidy of COBRA premiums for a six month period beginning April 1, 2021; (iv) an increase in the dependent care assistance program limit; and (v) […]
- [Taxpayer Certainty and Disaster Tax Relief Act of 2020 – Employee Benefit Provisions](https://ebeclaw.com/taxpayer-certainty-and-disaster-tax-relief-act-of-2020-employee-benefit-provisions/): Taxpayer Certainty and Disaster Tax Relief Act of 2020 – Employee Benefit Provisions Charles C. Shulman, Esq. The Taxpayer Certainty and Disaster Tax Relief Act of 2020, enacted as part of the Further Consolidated Appropriations Act, 2021, enacted December 27, 2020 (TCDTRA), provides for the following: Special Rules for Health and Dependent Care FSAs. Under the Taxpayer Certainty and Disaster Tax Relief Act § 214, with respect to health and dependent care flexible spending arrangements:  (i) the health and dependent care FSAs may provide for carryovers of unused account balances from the 2020 plan year to 2021 and from the 2021 plan year to […]
- [Coronavirus Aid, Relief and Economic Security Act (the CARES Act) of 2020](https://ebeclaw.com/coronavirus-aid-relief-and-economic-security-act-the-cares-act-of-2020/):   Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”) Charles C. Shulman, Esq.  The Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”), enacted March 27, 2020, provides, with respect to employees and families impacted by the coronavirus outbreak, for in-service plan distributions up to $100,00 and increased plan loans to $100,000 (the coronavirus-related distribution (“CRD”) and otherwise broadens the qualified plan loan rules for affected employees.  The CARES Act also waives required minimum distributions (“RMDs”) from defined contribution plans and IRAs for 2020. Coronavirus-Related Expansion of Plan Loan Rules.  The CARES Act allows plans to increase the maximum […]
- [SECURE Act Summary](https://ebeclaw.com/secure-act-summary/): SECURE Act Summary Charles C. Shulman, Esq. On December 20, 2019 the “SECURE Act” (Setting Every Community Up for Retirement Enhancement Act of 2019) was enacted part of the Further Consolidated Appropriations Act, 2020, P.L. 116-94, H.R. 1865 (with basically the same provisions of H.R. 1994, originally passed by the House on May 23, 2019).  The SECURE Act makes significant changes to retirement savings law.  This legislation is the first significant retirement benefit legislation in more than a decade. The following is a brief summary of the key provisions in the SECURE Act: Authorizing Multiple Employer Defined Contribution Plans The SECURE Act expands […]
- [PARTICIPANT LOANS: A ROAD MAP FOR PRACTITIONERS](https://ebeclaw.com/participant-loans-a-road-map-for-practitioners/): PARTICIPANT LOANS: A ROAD MAP FOR PRACTITIONERS Charles C. Shulman, Esq. August 8, 2018 See article in PDF format from JPPC (2018) at  https://ebeclaw.com/wp-content/uploads/2018/08/Participant-Loans-A-Roadmap-for-Practitioners-JPPC-Summer-2018.pdf Summary: The availability of participant loans from tax-qualified retirement plans often results in increased Plan participation by non-highly compensated employees.  Employers often choose to make loans available from their plans as a matter of employee relations.  However, plan loans are subject to complicated rules under both ERISA and the Code, and they are a trap for the unwary if they are not administered properly in compliance with these rules.  Recent developments regarding participant loans include certain changes made by […]
- [Employment Agreements (Including Severance, Parachute, Clawback, Noncompete and §409A Issues)](https://ebeclaw.com/employment-agreements-including-severance-parachute-clawback-noncompete-and-%c2%a7409a-issues/): See “Employment Agreements (Including Severance, Parachute, Clawback, Noncompete and §409A Issues)” by Charles C. Shulman, at Tax Management Compensation Planning Journal 9-2-2016. https://ebeclaw.com/wp-content/uploads/2016/10/Employment-Agreements-including-Severance-Parachute-Clawback-Noncompete-and-409A-Issues-44-TMCPJ-187-9-2-16-.pdf Employment agreements, which are very common for executives and senior management, raise a number of issues relating to terms of employment, severance on termination, change in control, excess parachute tax under Internal Revenue Code §280G, noncompete provisions, clawback provisions, SEC disclosure requirements, and restrictions on nonqualified deferred compensation under §409A.The terms of employment agreements and severance arrangements are of particular relevance in corporate transactions. Executives may be terminated as a result of a transaction, and the general […]
- [Whether Private Equity Funds are a Trade or Business - Sun Capital Partners III v. N. E. Teamsters Truck. Industry Pension Fund](https://ebeclaw.com/whether-private-equity-funds-are-a-trade-or-business-sun-capital-partners-iii-v-n-e-teamsters-truck-industry-pension-fund/): Whether Private Equity Funds are a Trade or Business –Sun Capital Partners III v. N. E. Teamsters Truck. Industry Pension Fund Charles C. Shulman, Esq. 5/4/2016 Background on Controlled Group Liability Controlled Group Liability.  Controlled group status as a single employer as set forth in IRC §414(b) and (c) apply for termination liability, multiemployer withdrawal liability, PBGC premiums, minimum funding obligations, COBRA continuation coverage, etc. Parent-subsidiary test.A parent-subsidiary controlled group will exist if there is a chain of entities conducting trades or businesses that are connected through a controlling interest with a common parent, with controlling interest being defined: (i) in the […]
- [Supreme Court Strikes Down Yard-Man Inference for Collectively Bargained Retiree Health Benefits to Continue for Life - M & G Polymers v. Tackett - 5/4/2015](https://ebeclaw.com/supreme-court-strikes-down-yard-man-inference-for-collectively-bargained-retiree-health-benefits-to-continue-for-life-m-g-polymers-v-tackett-5-4-2015/):   M & G Polymers v. Tackett (Supreme Court Jan. 2015) Strikes Down Yard-Man Inference for Collectively Bargained Retiree Health Benefits to Continue for Life; Court Holds Ordinary Contract Provisions Apply Charles C. Shulman, Esq. 5/4/2015 Since the early 1990s there has been a push by employers to cut back or terminate retiree health plans. In contrast to pension (qualified plan) benefits, welfare benefits do not vest by operation of law, but an employer can contractually obligate to vest benefits. There may be statements or communication implying lifetime benefits, but the plan documents and communication often reserve the right to modify […]
- [RULES RELATING TO 401(K) FEE DISCLOSURE OR INVESTMENT ADVICE GUIDANCE](https://ebeclaw.com/rules-relating-to-401k-fee-disclosure-or-investment-advice-guidance/): December 19, 2010(revised 6/25/12)   RULES RELATING TO 401(K) FEE DISCLOSURE OR INVESTMENT ADVICE GUIDANCE               Recent guidance – some proposed some final, and some with effective dates that have been extended – relate to 401(k) plan fee disclosure and investment advice, as described further below: Fee disclosure by plan administrators to participants for participant-directed 401(k) plans regarding investment options with a comparative chart of investment options and with the administrative expenses of each option is required under DOL regulations proposed in July 2008 and finalized in Oct. 2010. The effective date was delayed to 60 days after the […]
- [Leased Employees and Employee Classification](https://ebeclaw.com/leased-employees-and-employee-classification/): As published in 36 Journal of Pension Planning & Compliance 21 (Winter 2010)with minor additions – December 2010   In pdf format at https://ebeclaw.com/wp-content/uploads/2011/02/Professional_Employer_Organizations.pdf   Leased Employees and Employee Classification Charles C. Shulman   Charles C. Shulman, Esq. has over 20 years of experience in ERISA, employee benefits and executive compensation law. Before starting his own firm, Charlie practiced at Paul Weiss, at Cahill Gordon & Reindel and at Skadden Arps. He is admitted in New York and New Jersey, and may be reached at cshulman@ebeclaw.com, 212-380-3834 or 201-357-0577. An issue that has recently attracted attention has been misclassification of […]
- [EXECUTIVE COMPENSATION PROVISIONS OF DODD-FRANK WALL STREET REFORM AND CONSUMER PROTECTION ACT OF 2010](https://ebeclaw.com/executive-compensation-provisions-of-dodd-frank-wall-street-reform-and-consumer-protection-act-of-2010/): EBEC (Employee Benefits / Executive Compensation) Law Update Charles C. Shulman, Esq., LLC [December 15, 2010] EXECUTIVE COMPENSATION PROVISIONS OF DODD-FRANKWALL STREET REFORM AND CONSUMER PROTECTION ACT OF 2010   The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, P.L. 111-203, H.R. 4173, signed July 21, 2010 (“Dodd-Frank Act” or “Act”), contains say-on-pay and other shareholder-accountability executive compensation proxy rules. 1.   Say-on-Pay.  Section 951 of Dodd-Frank Act adds new § 14A(a) (15 USC §78n-1(b)) to the Securities Exchange Act of 1934 that a non-binding shareholder vote on executive compensation must be held every 1,2 or 3 years (with […]
- [SUMMARY OF FOUR DIFFERENT RULES (OR PROPOSED RULES) RELATING TO 401(K) FEE DISCLOSURE OR INVESTMENT ADVICE GUIDANCE](https://ebeclaw.com/summary-of-four-different-rules-or-proposed-rules-relating-to-401k-fee-disclosure-or-investment-advice-guidance-2/):   EBEC (Employee Benefits / Executive Compensation) Law Update SUMMARY OF FOUR DIFFERENT RULES (OR PROPOSED RULES) RELATINGTO 401(K) FEE DISCLOSURE OR INVESTMENT ADVICE GUIDANCE RevisedOctober , 2010               Recent guidance – some proposed and some final – relate to 401(k) plan fee disclosure and investment advice, as described further below: Service provider disclosure on Form 5500 Schedule C is now required for both direct and indirect compensation.  This became effective with the 5500s for the 2009 plan years. Fee disclosure by service providers to responsible plan fiduciaries to show reasonableness of contract (required by service-provider exemption of ERISA […]
- [Children’s Health Insurance Program (CHIP) Annual Notice](https://ebeclaw.com/childrens-health-insurance-program-chip-annual-notice/): Children’s Health Insurance Program (CHIP) Annual NoticeRequired by Beginning of Next Plan Year or May 1, 2010 April 28, 2010 Charles C. Shulman, Esq. Under the Children’s Health Insurance Program Reauthorization Act of 2009, a Children’s Health Insurance Program notice must be sent out by employers providing group health coverage.    The State Children’s Health Insurance Program of 1997 (SCHIP or CHIP), was enacted in order to provide medical coverage for children in families that would not qualify for Medicaid but still could not afford health insurance.  The Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA) increases funding and […]
- [NEW YORK HEALTH CONTINUATION COVERAGE EXTENDED TO 36 MONTHS AND OTHER STATE MINI-COBRA RULES](https://ebeclaw.com/new-york-health-continuation-coverage-extended-to-36-months-and-other-state-mini-cobra-rules/): Charles C. Shulman, Esq.       EBEC (Employee Benefits / Executive Compensation) Law Update https://ebeclaw.com/wp-content/uploads/2011/02/New_York_Mini-COBRA_Extended_to_36_Months-1-5-2010.pdf January 5, 2010 NEW YORK HEALTH CONTINUATION COVERAGE EXTENDEDTO 36 MONTHS AND OTHER STATE MINI-COBRA RULES                         New York State recently passed a law that extends continuation health coverage to 36 months.  Thus, group insurance plans that are subject to New York insurance law will have to offer continuation coverage for a total of 36 months, even though under the Federal COBRA law continuation coverage on termination of employment would only be required for 18 months.               COBRA 20-Employee Requirement.  Under Federal […]
- [SUMMARY OF THE PENSION PROTECTION ACT OF 2006](https://ebeclaw.com/summary-of-the-pension-protection-act-of-2006/): October 16, 2006 SUMMARY OF THE PENSION PROTECTION ACT OF 2006 TABLE OF CONTENTS Page Reform of Funding Rules Minimum Funding Rules…………………………………………………………………………………. 3 Interest and Mortality Assumptions for Funding and Other Purposes………………………… 4 Benefit Limits for Severely Underfunded Plans…………………………………………………… 4 Restriction on Funding Nonqualified Deferred Compensation Plan if Have Severely Underfunded or Terminated Plan………………………………………………………………………………………… 5 Funding Rules for Multiemployer Plans……………………………………………………………… 5 Increase in Deduction Limit for Defined Benefit Plan Contributions III.        Pbgc Guarantee and Related Provisions PBGC Premiums………………………………………………………………………………………….. 6 Limitation on Guarantee of PBGC Shutdown Benefits…………………………………………… 6 Termination of Plan in Bankruptcy……………………………………………………………………. 6 Treatment of Plans Where Cessation or Change in Membership of Controlled Group…… 7 Missing Participants………………………………………………………………………………………. 7 Reporting and […]
- [Worker, Retiree, and Employer Recovery Act of 2008](https://ebeclaw.com/worker-retiree-and-employer-recovery-act-of-2008/): Charles C. Shulman, Esq.  EBEC Law Update January 30, 2009   Worker, Retiree, and Employer Recovery Act of 2008 A.  WRERA Corrections to PPA Funding Rules B.  WRERA Corrections Relating to Interest Rates C.  Amendments Relating to PPA Benefit Accrual Standards and Cash Balance Plans D.  Amendments Relating to 404 Combined Plan Deduction Limit E.  Amendments Relating to Defined Contribution Plan Rollovers, Diversification, Participation, Blackout Period, EACAs, Excess Contributions, etc. F.  2009 Waiver of Required Minimum Distribution Rules for Defined Contribution Plans and IRAs G.  WRERA Provisions Relating to Multiemployer Plans H.  Other Miscellaneous WRERA Provisions The Worker, Retiree, and […]

## Pages

- [Blog](https://ebeclaw.com/blog/): 2025 Executive Order on Democratizing 401(k) Access to Alternative Assets August 29, 2025 Comments: 0 2025 Executive Order on Democratizing 401(k) Access to Alternative Assets By Charles C. Shulman, Esq. On August 7, 2025, President Trump issued an executive… Read More Employee Benefit Provisions in the One Big Beautiful Bill Act July 15, 2025 Comments: 0 Employee Benefit Provisions in the One Big Beautiful Bill Act By Charles C. Shulman, Esq. Public Law 119-21, 14, H.R. 1, 139 Stat. 72 (July 4, 2024), referred… Read More Right to a Jury Trial in ERISA Cases July 3, 2025 Comments: 0 Right […]
- [Employee Benefits & Executive Compensation Blog](https://ebeclaw.com/): Charles C. Shulman, Esq. Employee Benefits & Executive Compensationcshulman@ebeclaw.com – 201-357-0577 Possible Right to a Jury Trial in ERISA Cases July 3, 2025 Comments: 0 Possible Right to a Jury Trial in ERISA Cases By Charles C. Shulman, Esq. 1.    Right to Jury Trial in ERISA Legal Claims ERISA does not explicitly address… Read More Noncompete Clause Developments – 2025 June 12, 2025 Comments: 0 Noncompete Clause Developments – 2025 By Charles C. Shulman, Esq. I.          Introduction – FTC Noncompete Ban… Read More Cryptocurrency – Fiduciaries to Decide if it is a Prudent 401(k) Investment June 6, 2025 Comments: […]
- [Bio](https://ebeclaw.com/about/): Charles C. Shulman, Esq., has many years of New York BigLaw experience in employee benefits, employment and executive compensation law, including drafting, negotiating and advising regarding qualified plans, ERISA liability, nonqualified plans, executive compensation, equity-based awards, health, welfare and fringe benefit plans, employment agreements, fiduciary issues, employment law matters, and related M&A work. He has lectured and written on a wide variety of employee benefits and executive compensation topics. He is co-author of “Qualified Retirement Plans” (West treatise), including the seminal chapter 24 in QRPs, “Employee Benefits and Executive Compensation in Mergers & Acquisitions,” which he authored as is used in […]


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