Executive Compensation & Benefits

We offer unique, scalable executive compensation services ranging from a fully managed “concierge/consulting” approach to discrete projects, and we are a high-touch team offering benefits solutions with a deep bench of experience when difficult, complex and unusual issues arise.

• Corporate Transactions
  • Structuring transactions involves not only transactions on paper, but the people who are intricately linked to the success of the organization.
  • Our experience includes stewarding unicorns as well as emerging companies from formation to exit, regularly handling complex compensation and benefits matters on tight timelines as part of the transaction process. Our attorneys are experienced at guiding companies through the full lifecycle of corporate transactions, including diligence regarding equity, compensation and employment arrangements, negotiating transaction and related employment, incentive and retention documents and advising on the impact of transactions on equity and benefit arrangements. We represent both “buy-side” and “sell-side” employers across all industries in stock purchase, asset purchase and spin-off transactions, including cross-border transactions.  
  • Our team is also integral to the firm’s leading emerging company and IPO practice, including Special Purpose Acquisition Companies (SPACs) and SPAC consummation transactions (de-SPACs), with cross-functional teams including capital markets, mergers & acquisitions, tax and other lawyers to assist clients in crafting public offerings, governance structures, ERISA plans and compensation packages that provide maximum flexibility going forward. Our team members helped shape Pillsbury Propel, an online resource providing free customizable legal documents and authoritative guidance tailored to emerging growth companies. Propel offers users complimentary access to bespoke incorporation packages, advisory and consulting agreements and employee hiring contracts, along with practical and forward-looking advice for every stage of a startup’s life cycle. The site can be accessed by visiting pillsburypropel.com.
  • We also work extensively with clients post-transaction on the integration of employees (whether acquired in a transaction, involved in a spin-off, or consolidated in a reorganization). In most corporate transactions and reorganizations, the analysis and harmonization of legacy compensation, benefits, severance and retention arrangements is a key workstream that will ensure the continuation of the workforce after the transaction or reorganization.
• Executive Compensation
  • We are well-versed in both private and public company executive compensation. We negotiate executive employment and severance agreements and handle the design and implementation of stock-based compensation arrangements. Where securities laws must be considered, we offer advice regarding pertinent federal and state disclosure, registration and other compliance requirements. We advise on the tax implications of equity and deferred compensation arrangements, including Section 409A compliance issues.
  • We counsel companies and their boards in resolving disputes involving claims of breach of fiduciary duties, tortious conduct, or breach of contract involving equity compensation and wrongful termination, trade secrets, and stock option litigation.
  • Our experience includes:
    • “Golden parachute” tax consequences and the million-dollar limitation on deductible public company compensation
    • Director pay arrangements and disclosure
    • Cross-border equity and incentive plan structuring
    • ISS, Glass Lewis and other institutional shareholder voting issues and outreach
    • New employee onboarding, new hire, and separation agreements and disclosures
    • Pay ratio calculation and disclosure
    • Profits interest plans and other compensation arrangements for partnerships and LLCs
    • Phantom equity and other deferred compensation arrangements
    • Executive retirement plans, including SERPs (supplemental executive retirement plans) and excess benefit plans
    • Proxy disclosures and compensation tables

• ESG, Corporate Governance, and Board Advisory
  • Our ECB attorneys play a critical role in bringing balanced advice to our clients as a coordinating member of our interdisciplinary teams, with particularly deep roots in both our ESG and Board Advisory and Corporate Governance practices.
  • We provide public corporations, private companies, financial services firms, governments and other entities on a broad spectrum of ESG-related issues and concerns. As a part of the firm’s larger ESG team, we are passionate about helping clients design and implement comprehensive and integrated ESG and business strategies in this evolving area.
  • Whether considering routine matters, setting long-term strategy or dealing with “barbarians at the gate,” Pillsbury is the trusted advisor that you want at your side in the boardroom for high-stakes issues.
  • Our ESG experience includes providing advice specific to benefit programs subject to ERISA, such that fiduciaries consider the current ESG initiatives as they relate to investment funds under their retirement programs.
  • Following are just a few of the things we do:
  • Help win say-on-pay and director re-election proxy proposals in the face of shareholder advisor “no” vote recommendations,
  • Prepare ESG proxy disclosures with compelling graphics that improve ISS/Glass Lewis ESG scores,
  • Assist with compliance with SEC climate change disclosure rules to satisfy institutional shareholder concerns and avoid litigation (“greenwashing”),
  • Assist with the design and implementation of best-practice human capital management policies focusing on diversity, training and development, health and safety, human rights and community responsibility, and
  • Assist with the design of meaningful and measurable ESG factors in executive bonus plans.
• Benefit Plan Design and Compliance
  • Our experience includes the design, implementation and compliance of tax-qualified pension, profit sharing and 401(k) plans, governmental and tax-exempt entity plans, deferred compensation arrangements, as well as employment agreements, severance and retention arrangements (whether or not subject to ERISA).

  • We regularly advise employers on all types of health and welfare benefit programs, including health plans (fully insured and self-insured, and ACA-grandfathered and non-grandfathered), wellness programs, disability programs (including coordinating leave policies), wrap plans, account-based programs (full-scope and limited-scope flexible spending accounts, HRAs, and HSAs), telemedicine, mental health benefits, as well as VEBAs and retiree-only plans (including coordination with private exchanges).

  • We frequently strategize regarding the impact of new legal developments on both the employer and its employees, and we work with our clients to modify their benefits programs and practices to adjust for both legal changes and their business needs. We are also aware of the practical implications of administering sophisticated benefit programs and partner with our clients and their third-party vendors to assist in the operation of their programs.

  • Our lawyers frequently review and negotiate vendor agreements with all types of service providers for clients (both plan sponsors and plan fiduciaries), including investment management agreements, collective investment trusts, private equity and hedge fund investment agreements, trust and custodial agreements, and third-party administration agreements.

  • We believe that Pillsbury sets itself apart with our experience in this area, as we partner with our firm’s award-winning Global Sourcing group to ensure that our clients receive “best in class” advice that addresses the benefits issues, as well as the more general contractual considerations in these agreements. We identify areas of risk—such as indemnity provisions, responsibilities of fiduciaries versus settlors, offshore recordkeeping arrangements, compliance with applicable laws, data security and allocation of service duties—and strategize with our clients with regard to their particular business objectives, risk tolerances and participant population.

• Benefit Plan Investments & Fiduciary Responsibilities

  • In the United States and globally, employee benefit plan holdings represent the majority of all investment assets. Governmental regulations and policies of the markets affect employees and employers across the world, requiring careful legal guidance on the ever-changing landscape.

  • Our attorneys counsel private employers, employee organizations, tax-exempt entities, plan sponsors, fund managers, fiduciaries and institutional investors on all aspects of their retirement asset investment programs and the participation in capital markets, including the fiduciary, tax and ERISA (and, where applicable, state law) implications of proposed investments and pension plan derisking.

  • We have negotiated and drafted investment agreements with traditional investment managers, as well as agreements involving alternative investment strategies, including hedge funds, private equity funds, venture capital funds, leveraged buyouts, mezzanine debt and distressed funds, and funds of all types.

  • Pillsbury has unparalleled experience serving as ERISA fiduciary counsel to boards of directors, compensation committees and fiduciary committees, including boards of public and private retirement plans, and advising both governmental and other public agencies on their fiduciary duties. For instance, we have advised several committees of large defined-benefit pension plans and defined-contribution savings plans sponsored by public agencies, including a public agency with retirement assets totaling more than $100 billion.

  • We appreciate that plan investment committees and fiduciaries have unique responsibilities, so our lawyers routinely participate in plan investment and board committee meetings and provide training on current developments. You can see an example of such training to a public pension board in 2022 here.

• Public Employer Plans

  • We regularly advise public agencies on compensation and benefits matters, including all issues relating to the design and administration of their retirement plans, health and welfare plans, and nonqualified benefit programs. The Pillsbury team also counsels governmental entities on the fiduciary responsibilities relating to their benefit programs, requirements of the federal and state laws governing benefit plans (including the Internal Revenue Code and California vested rights laws); and all operational issues confronting an agency’s benefit programs. We regularly advise governmental employers on federal, state and local payroll tax-reporting-and-withholding requirements.

• Regulatory and Government Affairs
  • We monitor and advise on new legislation and regulatory developments arising with the Internal Revenue Service, Department of Labor, Department of Health and Human Services, the Equal Employment Opportunity Commission, the Securities and Exchange Commission and Pension Benefit Guaranty Corporation. We advise on and handle governmental audits and investigations, including document production, interfacing with government agents, and preparing fiduciaries and officers for interviews with government agents. Besides responding to audits and other government-initiated actions, we proactively address client concerns through “mock” audits of employee benefit plans, informal outreach to regulatory staff and use of IRS and DOL voluntary correction programs, such as the IRS’s Employee Plans Compliance Resolution System.
  • We have a robust Government Law & Strategies practice that we partner with in advocating our clients’ interests at federal, state and local levels. In addition, we consult with regulatory staff through our involvement in, and leadership of, various professional associations, including Pillsbury’s continued partnership with the ERISA Industry Committee (ERIC) and the American Bar Association.
• Payroll Tax
  • Our team also offers strategic counsel and tailored solutions for a wide range of payroll tax and information-reporting legal issues, helping our clients ensure compliance and mitigate risks. We regularly advise and counsel on payroll tax, fringe benefits, such as adoption and surrogacy benefits, contingent workforce and other information-reporting issues, including FICA taxes; employer identification numbers (EINs); shifting payroll tax liability; Section 530, Classification Settlement Program (CSP) and Voluntary Classification Settlement Program (VCSP) relief; excise tax withholdings in relation to executives’ golden parachute payments; and issues involving pass-through entities.