Segal, Adam P.

Adam Segal represents numerous ERISA, multiemployer and public employer employee benefit trust funds and plans with respect to all aspects of benefit plan representation.

Adam carries significant experience in employee benefits plan design, drafting and qualification; IRS determination letter applications; fiduciary duties; trustee meetings and advice; IRS and Department of Labor audit defense; regulatory compliance under ERISA, HIPAA, WHCRA, PHSA and other applicable laws; litigation, including ERISA collections and claim defense, fiduciary liability, withdrawal liability (both plan and employer side) and Ninth and Tenth Circuit appeals.

Adam also serves as a AAA panel arbitrator for withdrawal liability disputes.

Representative Matters
  • Obtained summary judgment against Westgate LVH, LLC and a subsidiary company for successor withdrawal liability. Westgate purchased the Las Vegas Hilton after a foreclosure auction. However, the Hilton did not pay its share of unfunded vested liability to a multiemployer pension plan. The Plan then successfully pursued Westgate for successor withdrawal liability and was awarded a judgment for over $2M. Westgate LVH, LLC v. Trustees of Nevada Resort Ass'n-Iatse Local 720 Pension Tr., No. 217CV01731RFBNJK, 2019 WL 4738013 (D. Nev. Sept. 28, 2019).

  • Obtained summary judgment against Nevada Labor Commissioner that state statute purporting to regulate trusts was preempted by ERISA. Board of Trustees of the Glazing Health and Welfare Trust v. Chambers, 168 F. Supp.3d 1320 (D. Nev. March 10, 2016). After the Nevada legislature modified the statute and a 2-1 Ninth Circuit decision reversing the district court, obtained unanimous en banc opinion from Ninth Circuit Court of Appeals that the issue was moot.

  • Obtained temporary restraining order against the Clark County School District due to an alleged Open Meeting Law Violation, halting its plan to remove over 170 people from their Dean of Students positions. The restraining order combined with public pressure caused the District to abandon its plan of removing all of the Deans.

  • Obtained judgment against benefit plan participant who committed fraud by misrepresenting his marriage statuses in an attempt to gain more benefits than he was entitled to receive.

  • Successfully obtained a $19.5 million interest arbitration ruling for the Clark County Association of School Administrators and Professional-Technical Employees (CCASA) against the Clark County School District, the fifth largest school district in the nation. After an arbitration hearing, the arbitrator determined that the District had the ability to pay CCASA’s offer and the administrators were historically and comparatively underpaid while work requirements were increasing.

  • 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.

  • 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).

  • Nevada Labor Commissioner that the state statute purporting to regulate trusts was preempted by ERISA. Board of Trustees of the Glazing Health and Welfare Trust v. Chambers, 168 F. Supp.3d 1320, (D. Nev. March 10, 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.

  • Obtained judgment that included punitive damages against dental office for fraudulent billing to health plan. Trustees of the Construction Industry and Laborers Health and Welfare Trust v. Vargas, No. 12A673576 (Nev.Dist.Ct. June 12, 2014).

  • 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)

  • 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)

  • 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).

  • 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.

  • 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.

  • 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.

  • 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."

  • 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).

  • Counsel to Trustees of Construction Industry & Laborers Health & Welfare Trust in obtaining judgment against individual owners of company for fiduciary liability tied to company’s failure to remit fringe benefit contributions to multiemployer trust funds.

  • 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.).

  • 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).

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

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

News & Events
Community

Board of Directors, HealthInsight

Publications & Presentations
  • How Employers Can Assist Employees (Current and Former) Right Now

    Countless employers have been forced to reduce employees’ hours or terminate employees due to the 2019 novel coronavirus (“COVID-19”). Federal and state governments are working to pass stimulus legislation to assist the people and businesses most affected by the economic fallout created by this national emergency. In the meantime, beyond offering paid sick leave or implementing severance pay programs, employers can take other actions under existing employee benefit programs to cushion the fall for their current and former employees. Below is a summary of some of these actions:

    Amend Group Health Plans
    • Subsidize COBRA. An employer must offer COBRA (or the state law equivalent if a small employer) to an employee who loses group health plan coverage due to a reduction in hours or a termination of employment. Qualified beneficiaries typically are required to pay the full COBRA premium of up to 102% of the cost.1 However, an employer could subsidize the cost of the COBRA premium for its former employee in order to ensure the continued coverage is affordable. When offering subsidized COBRA coverage, be certain to state in the notice that the subsidy period runs concurrently with and does not lengthen the regularly applicable COBRA coverage period. Brownstein Comment: We’d be happy to talk with you about how to structure any COBRA subsidies since they could be provided in different ways (reimbursement, employer-direct pay, or direct payment to the qualified beneficiary) with varying advantages, disadvantages and employer risk.
    • Allow Coverage for Part-Time Employees. Many group health plans impose a “full-time” employment requirement in order for an employee to be eligible for coverage. “Full-time” is typically defined as working 30 hours or more per week consistent with the Affordable Care Act’s definition of a full-time employee. An employer could amend its group health plan to provide coverage to employees who are scheduled to work less than the full-time threshold. Doing so would negate the need to offer COBRA and could be limited to a set period of time. In addition, to protect variable-hour employees’ coverage, applicable large employers should consider revising applicable lookback measurement periods during the COVID-19 crisis. Brownstein Comment: While we are aware that some insurers are issuing FAQs indicating that coverage of employees not meeting the agreed-upon eligibility requirements will be permitted for a specified, limited period of time, we recommend that, if you have a fully insured plan, you review your policy requirements and confirm coverage of part-timers with the insurer so as to avoid creating any situation where health services would be denied by the insurer.
    Amend Dependent Care Spending Accounts (“DCAP”)
    • Add a Spend-down Provision. A spend-down provision allows terminated employees to use the money remaining in the employee’s DCAP for qualified benefits incurred through the end of the plan year in which the employee is terminated.2 Expenses incurred after a termination of employment are only eligible for DCAP reimbursement if they enable the employee or spouse to be employed (by a new employer), looking for work, or attending school full-time.3 While there will be practical limitations to incurring eligible expenses during the COVID-19 crisis, a spend-down provision removes one roadblock to the use of DCAP funds.
    • Add a Grace Period. If not already in the plan, add a provision that permits employees to carry over unused DCAP contributions from one year to the next so they don’t lose amounts already saved to the DCAP in 2020 that they may be unable to use in 2020 for reasons like being required to work from home and/or the shutdown of day care facilities. The plan may allow participants to access unused amounts remaining in their accounts at the end of a plan year to pay or reimburse expenses for qualified benefits (such as DCAP expenses) incurred during a grace period of up to two months and 15 days following the close of the plan year.4
    • Allow Mid-Year Changes. Ensure that the plan contains provisions and has administrative practice that allows an employee to elect to cease salary deferrals into the DCAP if they take FMLA due to their own or a family member becomes ill with COVID-19.5 Brownstein Comment: Given the national emergency in which we find ourselves, the IRS would not likely object to liberal interpretations of mid-year election change provisions in order to allow employees to cease their salary deferrals to DCAPs to avoid negative financial consequences if such deferrals were not otherwise allowed.6
    Amend Retirement Plans
    • Allow Multiple Loans and/or Suspend Repayments. An employer that sponsors a profit-sharing plan (“PSP”), 401(k) plan or 403(b) plan could amend the plan to permit plan loans to participants. If a plan already allows loans but limits each participant to only one loan at a time, the plan could be amended to allow more than one plan loan outstanding at a time. In addition, the plan could be amended to provide for suspension of the loan repayment requirements during (i) an unpaid bona fide leave of absence for up to one year or (ii) a paid leave of absence when the participant’s rate of pay (after income and employment tax withholding) is less than the installment payment required under the terms of the loan.7 Brownstein Comment: Current law and regulations limit plan loans to a participant to the lesser of (i) 50% of the participant’s vested account balance and (ii) $50,000.8 We are aware that some legislation being presented to Congress includes changes to those limitations, so future access to more funds through plan loans may be possible.
    • Fully Vest Participants. An employer could amend its qualified retirement plan to fully vest participants’ accounts to the extent funded and not already fully vested. By doing so, the employer would make more money available to participants terminated as a result of COVID-19’s impact on the employer. If this measure is combined with a hardship distribution (see below), the participants would be able to access more money without a penalty.
    • Add or Expand In-Service Distribution Provisions.
      • In-Service Distributions. Employers that sponsor a PSP or 401(k) may amend the plan to allow for in-service distribution of amounts that have been held in the plan for at least 24 months. A PSP also could provide for distributions after stated events, such as a furlough, layoff or hardship. A distribution of profit-sharing contributions is also permitted after a fixed number of years to a participant who has participated in the plan for at least five years.9 Brownstein Comment: Ordinarily such a distribution before age 59½ would be subject to the 10% early distribution excise tax. However, both proposed Senate and House bills contain a waiver of this excise tax on “coronavirus related distributions” taken in 2020.
      • Hardship Distributions. Safe harbor hardship events that permit distributions under a 401(k) plan or 403(b) plan include, among others, (i) expenses for medical care previously incurred by the participant, the participant’s spouse, any of the participant’s dependents, or the participant’s primary beneficiary under the plan; or expenses necessary for those persons to obtain medical care deductible under Code §213; (ii) payments necessary to prevent the eviction of the participant from the participant’s principal residence or foreclosure on the mortgage on that residence; and (iii) expenses and losses (including loss of income) incurred by the employee on account of a disaster declared by FEMA, provided the employee’s principal residence or place of employment at the time of the disaster was located in an area designated by FEMA for individual assistance.10 An employer could amend its plan to make hardship distributions during the COVID-19 crisis that meet one or more these safe harbor events.
    • Revise Method for Counting Hours of Service. If a qualified retirement plan normally credits hours using the counting hours method, an employer could amend the plan to credit hours on an elapsed time basis during the COVID-19 crisis. Under the elapsed time method, service time is credited generally based on date of hire to date of termination, without regard to the actual numbers of hours worked during that period. This may prevent employees with reduced hours from losing accruals and vesting under the plan.11
    Establish a Qualified Disaster Relief Payment Program

    An employer may set up a “qualified disaster relief program” under Code §139. Any amount paid to reimburse or pay reasonable and necessary personal, family, living or funeral expenses incurred as a result of a qualified disaster would fall within the definition of a qualified disaster relief payment to the extent any expense compensated by the payment is not otherwise compensated for by insurance or some other reimbursement.

    Qualified disaster relief payments are excluded from an employee’s gross income and from the employee’s wages and compensation for purposes of employment taxes. As a result, these payments are not subject to federal income tax withholding, FICA or FUTA. The payments do not have to be reported by an employer making the payment on the receiving employee’s Form W-2, and do not have to be reported as income by the affected employee.12 Brownstein Comment: While current guidance does not require much, if any, recordkeeping, an employer should keep appropriate records in order to document its corporate tax deduction.

    How We Can Help

    Please contact one of us or your regular Brownstein attorney for answers to your questions and help with addressing your concerns about how to assist employees in the midst of the economic fallout from the spread of the coronavirus. Among other things, we can help you determine if (and how) your plan needs to be amended and help you craft appropriate communications to your employees. We also have employment law experts who can help you address related employment law issues, including applicable state wage and leave laws.

    Click here to read more Brownstein alerts on the legal issues the coronavirus pandemic raises for businesses.

     

    1 Code § 4980B(f)(2)(C). The COBRA premium can be up to 115% for disabled individual coverage.

    2 Prop. Treas. Reg. § 1.125-6(a)(4)(v).

    3 Code § 129(e).

    4 Prop. Treas. Reg. §§ 1.125-1(e) and 1.125-5(c)(1).

    5 Treas. Reg. § 1.125-3, Q&A-7.

    6 We are aware of prior informal non-binding remarks from officials in the IRS Office of Chief Counsel indicating that the DCAP election rules should be liberally interpreted.

    7 Treas. Reg. § 1.72(p)-1, Q/A-9.

    8 See Code § 72(p)(2).

    9 Treas. Reg. § 1.401-1(b)(1)(ii); see also Rev. Rul. 68-24, 1968-1 C.B. 150. See also Rev. Rul. 54-231, 1954-1 C.B. 150.

    10 Treas. Reg. § 1.401(k)-1(d)(3), as amended to reflect the SECURE Act.

    11 See Treas. Reg. § 1.410(a)-7(g).

    12 Note that applicable state and local laws need to be consulted to determine whether these amounts are subject to any state and local taxes (and related tax  Qualified Disaster Relief Payments withholding).

     

    This document is intended to provide you with general information regarding about employee benefits issues. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.

  • Health Plan Coverage of Coronavirus Testing and Treatment

    Brownstein Client Alert, March 12, 2020

  • “Actual Knowledge” Required to Apply ERISA’S Three-Year Statute of Limitations to Fiduciary Breach Claims

    Brownstein Client Alert, February 27, 2020

  • Employee Benefits-Related Limits For 2020
    Brownstein Client Alert, November 7, 2019

  • IRS Implements Prospective Expansion of Determination Letter Program to Merged Plans
    Brownstein Client Alert, May 7, 2019

  • IRS Expands Self-Correction of Retirement Plan Errors

    Brownstein Client Alert, April 25, 2019

  • 2019 Increases for Employee Benefits-Related Limits
    Brownstein Client Alert, November 16, 2018

  • Revised Employee Benefits-Related Limits for 2018; Decreases in Family HSA Contributions and Adoption Assistance Require Action
    Brownstein Client Alert, March 6, 2018

  • Updated Employee Benefits-Related Limits for 2018

    Brownstein Client Alert, November 30, 2017

  • Employee Benefits-Related Limits for 2018
    Brownstein Client Alert, November 7, 2017

  • How to Handle Mass Withdrawals
    IFEBP Benefit Plan Professionals Institute for Accountants, Las Vegas, Nevada, June 14, 2011

  • Withdrawal Liability
    IFEBP Trustees and Administrators Institute, Las Vegas, Nevada, June 13, 2011

  • Bankruptcy Fundamentals
    IFEBP Collection Procedures Institute

  • Pros and Cons on Bonds
    International Foundation of Employee Benefit Plans (IFEBP) Collection Procedures Institute

  • QDRO Creation in Nevada
    National Business Institute

  • Under Funded Health and Welfare Funds
    Union Affiliated Contractors (UAC) Unity Meeting

  • Presentation on Assembly Bill 286 (public retiree health law)
    3rd Annual Nevada Public Employer Labor Relations Conference

  • A New Take on Subrogation
    IFEBP Health Care Management Conference

  • Bonding and Workshop on Bonding
    IFEBP Collection Procedures Institute

  • Mock Collection Committee
    IFEBP Collection Procedures Institute

  • Drafting a Qualified Domestic Relations Order (QDRO) to Divide a Pension
    Communiqué

Education
  • J.D., 1996, cum laude, Santa Clara University School of Law
  • B.A., 1992, with honors, University of California, Santa Cruz
Admissions
  • Nevada
  • California
  • U.S. District Court, District of Nevada
  • U.S. District Court, Central District of California
  • U.S. Court of Appeals, Ninth Circuit
  • U.S. Court of Appeals, Tenth Circuit
  • U.S. Court of Appeals, Federal Circuit
Recognition

Best Lawyers in America, 2008-2020

Managing Editor, Santa Clara Computer and High Technology Law Journal, Santa Clara University School of Law

Membership

American Bar Association

Clark County Bar Association

State Bar of California

State Bar of Nevada

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