Employment Benefits & Executive Compensation - Brownstein Hyatt Farber Schreck

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
  • Successfully defended employee benefit fund against a hospital’s $750,000 ERISA benefit claim. Prevailed on a motion for summary judgment by demonstrating that the underlying patient was not eligible for benefits at the time of treatment. Lifecare Management Services, LLC v. Electrical Workers Health and Welfare Trust Fund, et al., Case No. 3:15-cv-00307-RCJ-VPC (D. Nev. Apr. 14, 2017).

  • Successfully represented one of the largest health insurance companies in the country in a lawsuit alleging violations of the Sherman Act and Colorado Antitrust Act. Asserted counterclaims under the Sherman Act, Colorado Antitrust Act, Colorado Consumer Protection Act, and ERISA, in addition to various tort claims.

  • Defended labor organization against former member in federal action alleging multiple discrimination claims and simultaneously in a proceeding in front of the Nevada Local Government Employee-Management Relations Board (“EMRB”). Prevailed in the EMRB Proceeding after participating in an administrative hearing and in the federal action by obtaining summary judgment. The labor organization was then awarded its attorney’s fees in the federal proceeding as a prevailing defendant in a civil rights action. Bramby A. Tollen v. Clark Cty. Ass’n of Sch. Admin. & Prof’l Employees, No. 2:15-CV-01096-JAD-NJK, 2016 WL 4203824 (D. Nev. Aug. 8, 2016).

  • Represented Gaia in the $145.7 million sale of its branded fitness equipment and apparel business to Sequential Brands and Fit for Life.

  • Represented Ergentus Emergency Physicians in its merger with US Acute Care Solutions, a portfolio company of Welsh, Carson, Anderson & Stowe.

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

  • Brownstein represented Gilbert Hospital, LLC, a general acute-care hospital based in Gilbert, Arizona in connection with its merger with Florence Hospital at Anthem, LLC pursuant to a confirmed Chapter 11 plan of reorganization. Representation included 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.

  • Represented 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.

  • Advised closely-held real estate investment company with the design of an investment proceeds sharing program to be exempt from IRC 409.

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

  • Advised publicly-traded employer on corrections of deliquent distributions from nonqualified deferred compensation plan in accordance with IRC 409A correction procedures.

  • Represented Encore Consumer Capital in its acquisition of Full Sail Brewing Company, a craft brewery located in Hood River, Oregon.

  • Served as employee benefits counsel to Encore Consumer Capital in its acquisition of Full Sail Brewing Company, a craft brewery located in Hood River, Oregon.

  • Obtained judgment against employer that failed to pay its employees’ fringe benefits. Trustees of Plumbers & Pipefitters Union Local 525 Health & Welfare Trust & Plan v. Sw. Air Conditioning, Inc., No. 2:11-CV-01995-KJD, 2012 WL 6096672 (D. Nev. Dec. 4, 2012).

  • Served as employee benefits counsel to WealthTouch Holdings, Inc., 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, LLC, an Indianapolis-based provider of software products and outsourced support services for the investment management and private wealth management industries.

  • Served as employee benefits counsel to Regional Care Services Corporation, the parent company of Casa Grande Regional Medical Center based in Casa Grande, Arizona, in connection with negotiation of the sale of the hospital assets to Banner Health pursuant to an Asset Purchase Agreement and related transactions. Representation encompassed all aspects of this sophisticated sale transaction, including the sale process and APA, coordinating interim financing arrangements and reorganization under Chapter 11, and identifying and resolving all health care regulatory aspects of the foregoing.

  • Served as employee benefits counsel to Tropicana Entertainment Inc. and its majority shareholder, Icahn Enterprises LP, in the acquisition of the Lumiere Place Casino, HoteLumiere, and Four Seasons Hotel St. Louis, from certain subsidiaries of Pinnacle Entertainment, Inc.

  • Served as employee benefits counsel to Tarte, Inc., a portfolio company of Encore Consumer Capital, in its sale to Japan’s KOSÉ Corporation, a Tokyo-based global cosmetics business.

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

  • Served as employee beneftis counsel to American Medical Response, Inc., a subsidiary of Envision Healthcare Holdings Inc., in its acquisition of MedStat EMS, Inc., a Mississippi based ambulance company.

  • Obtained 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).

  • Served as employee benefits counsel to DigitalGlobe in its acquisition of Spatial Energy, a leading source for digital imagery and related services to the energy industry.

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

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

  • Served as 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.

  • Assisted in obtaining judgment against employer for delinquent contributions, interest, liquidated damages and attorney’s fees on behalf of multiemployer benefit funds. Trustees of the Const. Indus. & Laborers Health & Welfare Trust v. Advanced Traffic Safety, Inc., No. 2:10-CV-01602-KJD, 2012 WL 938652 (D. Nev. Mar. 20, 2012).

  • Served as employee benefits counsel to Alliant Energy Services, LLC in its disposition of 100% of the stock of its subsidiary, RMT, Inc. to Infrastructure Energy Services, LLC (IEA).

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

  • Served as employee benefits counsel to Republic Financial Corporation in its sale of Griffith Enterprises, LLC to Amphenol Corporation. Griffith Enterprises is a Cottonwood, Arizona-based aerospace systems and components manufacturer specializing in the production of mission-critical interconnect harnesses, electrical sub-assemblies and engine and system controls.

  • Successful defense of health insurer in trial over member cost-sharing dispute.

  • Represented Barden Nevada Gaming, LLC in the $18,000,000 sale, representing 100% of the equity, of the Fitzgerald's Casino and Hotel in Las Vegas.

  • Advises trustees of public pension fund on fiduciary duties.

  • Assisted Vail Resorts, Inc. and its subsidiary Specialty Sports Ventures, LLC with employment and ERISA issues associated with the acquisition of Outdoor Outlet, LLC, a Wisconsin-based company that owns and operates O2GearShop.com, an online retailer of outdoor/snowsports goods and equipment.

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

  • Served as employee benefits counsel to Vail Resorts, Inc. (NYSE: MTN) in its acquisition of Mountain News Corporation (MNC), which operates the world's most visited online snow sports portal, OnTheSnow.com. Mountain News Corporation is the top provider of snow reports to more than 1,200 web sites throughout the world, including approximately 400 news media websites.

  • Represented Vail Resorts, Inc. (NYSE: MTN) in its acquisition of Mountain News Corporation (MNC), which operates the world's most visited online snow sports portal, OnTheSnow.com. Mountain News Corporation is the top provider of snow reports to more than 1,200 web sites throughout the world, including approximately 400 news media websites.

  • Served as employee benefits counsel to Strategic Analytics Inc., a global software and services company in the retail lending industry, in connection with the sale of all of the outstanding stock of the company.

  • Amended and restated the health and welfare plans and the summary plan descriptions for a manufacturing company. The restatement was intended to reflect the applicable requirements of recently enacted laws including GINA; the HEART Act; Michelle's Law; mental health parity amendments; ARRA, including the COBRA premium subsidy; CHIPRA and the HITECH Act.

  • Advised a manufacturing company regarding its ability to amend its 401(k) plan to restrict the availability of in-service withdrawal of participant account balances without violating the anti-cutback rule that applies to protected benefits in qualified plans. Brownstein drafted the related plan amendment and summary of material modification to notify employees of the change in the 401(k) plan's withdrawal provisions.

  • 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.

  • Trustees of the Utah Carpenters' and Cement Masons' Pension Trust v. Daw, Inc., 2009 WL 77856 (D. Utah). Employer's successor's withdrawal liability; successor's failure to arbitrate withdrawal liability waived all defenses; successor was not entitled to refund of contributions allegedly made by "mistake."

  • Hartford Fire Insurance Company v. Trustees of the Construction Industry and Laborers Trust Funds, ___ P. 3d ___, 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.

  • Trustees of the Utah Carpenters' and Cement Masons' Pension Trust v. New Star/Culp, 2009 WL 1351580 (D. Utah). ERISA plan's motion for attorneys' fees, interest, liquidated damages and costs, was not subject to the 14-day filing limit for attorneys' fees motions, which did not apply to ERISA actions; plan awarded all fees, interest, liquidated damages and costs sought.

  • 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.

  • Smith Green Corporation v. Trustees of the Construction Industry Laborers Health Welfare Trust, 244 F. Supp. 2d 1098 (D. Nev. 2003). ERISA preempts state law claims against ERISA plan for intentional interference, breach of contract, etc. and defendant would be sanctioned for asserting them after ERISA plan's counsel provided defendant's attorney with preemption authorities.

  • 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 Cement Masons and Plasterers Health and Welfare Trust v. Fabel Concrete, Inc., 159 F. Supp. 2d 1249 (D. Nev. 2001). A bond held by ERISA employer's alter ego was liable for ERISA employer's debt to ERISA plan.

  • 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.

  • Guthart v. White, 263 F. 3d 1099 (9th Cir. 2001). ERISA health plan participant who sued plan for benefits did not perform qualifying work and, although contributions were made to ERISA plan on his behalf, was not entitled to plan coverage or benefits.

  • 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".

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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
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