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Release Us! – 409A and Releases: Redux



Wednesday, November 7, 2012
Product Code - LGN63
Speaker(s): Regina Olshan, Skadden, Arps, Slate, Meagher and Flom, LLP; Andrew Oringer, Dechert, LLP; Andrew Gaines, Paul, Weiss, Rifkind, Wharton & Garrison LLP
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It has long been a common practice to require exiting employees to execute a release of claims as consideration for the receipt of severance and other separation payments. While historically this practice may have had little to do with deferred compensation, a surprising degree of complexity and confusion has arisen concerning the intersection of releases and Section 409A of the Internal Revenue Code. This complexity and confusion has led to two notices being issued by the Treasury Department and Internal Revenue Service addressing the correction of documentary violations caused by release provisions. 

This presentation discusses various issues arising from the use of a release in a separation arrangement, the proper way to draft release provisions (both where the separation pay constitutes deferred compensation under Section 409A and where it does not), the IRS transitional relief (expiring on December 31, 2012) for complying with Section 409A requirements applicable to payments contingent on the execution of a release of claims, and what employers need to do before the December 31, 2012 deadline.

Educational Objectives:

• Understand issues arising from the use of releases in separation arrangements.
• Gain an awareness of the IRS transitional relief for nonqualified deferred compensation plans to comply with Section 409A requirements applicable to payments contingent on the execution of a release of claims, and the expiration of the transitional relief on December 31, 2012.
• Learn how to properly draft release provisions.
• Become informed about what needs to be done before the December 31, 2012 deadline.

Who would benefit from attending the program?

In-house legal practitioners in the areas of tax and employee benefits/executive compensation, as well as human resource (HR) professionals.

Program Level: Intermediate. (This program assumes the attendee has some basic knowledge of Section 409A from practice or prior seminars.)

Credit Available: CLE. For more information, please click on the “CLE Credit” tab.

Regina Olshan, Skadden, Arps, Slate, Meagher and Flom, LLP; Andrew Oringer, Dechert, LLP; Andrew Gaines, Paul, Weiss, Rifkind, Wharton & Garrison LLP

Regina Olshan, Skadden, Arps, Slate, Meagher and Flom, LLP
Regina Olshan’s practice focuses on advising companies, executives and boards on navigating the regulatory complexities of executive compensation and benefits. This includes tax laws (including laws governing deferred compensation, golden parachute arrangements and deduction limitation rules) and securities laws (including reporting and disclosure requirements and registration issues).

In addition, Ms. Olshan regularly advises public companies, boards, private equity clients and members of management on executive compensation and benefits issues arising in the context of mergers, acquisitions, spin-offs, initial public offerings, restructurings and other extraordinary corporate events, including private equity and leveraged buyout transactions. She also regularly advises large public companies and individual senior executives on the adoption, revision, and negotiation of executive employment and severance agreements.
Ms. Olshan organized and led the successful effort by a coalition of more than 90 law firms requesting the extension of the original Internal Revenue Code section 409A compliance deadline. She is the author and editor of the Section 409A Handbook, lectures frequently on executive compensation issues, and has been quoted in various major publications on issues arising under Internal Revenue Code sections 409A and 457A, and other executive compensation matters.

Ms. Olshan was ranked in Band 1 in Chambers USA: America’s Leading Lawyers for Business for New York employee benefits and executive compensation. She also is listed in The Best Lawyers in America. She earned a J.D. from Yale Law School; a Fulbright Award, College d'Europe, Brussels, Belgium; and a B.A. in physics from Harvard University (physics). Ms. Olshan is admitted to practice in New York and Connecticut.

Andrew Oringer, Dechert, LLP
Andrew L. Oringer is the senior ERISA and Executive Compensation attorney in Dechert’s New York office and leads the firm’s fiduciary practice nationally. Mr. Oringer is a frequent speaker and writer on a wide variety of topics. Mr. Oringer holds leadership roles for the American Bar Association and the New York State Bar Association and is on the advisory boards for a number of leading publications covering ERISA and executive compensation. He also teaches ERISA as an adjunct professor and in other educational settings. Several major legal directories have recognized Mr. Oringer as a leading lawyer, including Chambers USA (at Band One since 2008).

Mr. Oringer earned an A.B., cum laude, with Distinction in Economics, from Duke University; an M.B.A. from Adelphi University; and a J.D., with Distinction, from Hofstra University School of Law, where he was Associate Editor of the Hofstra Law Review. He is admitted to practice before the United States Court of Appeals for the District of Columbia and is admitted to the New York Bar.

Andrew Gaines, Paul, Weiss, Rifkind, Wharton & Garrison LLP
Andrew Gaines advises employers on all aspects of executive compensation and employee benefit plans and their treatment in corporate transactions and in bankruptcy. He counsels investment fund sponsors on ERISA issues associated with the formation of private investment funds and the structuring of underlying investments. Mr. Gaines also frequently counsels large institutional pension investors on fiduciary issues arising in connection with investing in private investment funds. He also represents employers and executives in the negotiation of employment and severance agreements.

Mr. Gaines has been recognized as a "leading individual" in Employee Benefits & Executive Compensation by Chambers USA for the past three consecutive years. He also has been recognized by Legal 500 USA and by the PLC Which Lawyer? Yearbook. He is a frequent writer and lecturer on executive compensation and employee benefits topics.

Mr. Gaines earned a J.D. from Benjamin N. Cardozo School of Law and a B.A. from Hobart & William Smith College. He is admitted to the New York Bar.

This program is CLE-credit eligible.

If you have further questions regarding a specific state or how to file for CLE credit, please contact Bloomberg BNA customer service at 800-372-1033 and ask to speak to the Legal and Business CLE Accreditation Coordinator.

Hardship Policy
Bloomberg BNA offers a hardship policy for any attorney earning less than $30,000 per year. If an attorney wishes to take advantage of this option, he or she must do so in writing and also provide proof of hardship. If approval is granted, a discount of 50% off the full registration price of the program will be awarded.

Questions
For more information about Mandatory or Minimum Continuing Legal Education (MCLE) requirements, visit the American Bar Association website at http://www.abanet.org/cle/mandatory.html.