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Release Us! -- Section 409A and Releases



Wednesday, February 2, 2011
Product Code - LGAU02
Speaker(s): Andrew L. Gaines, Weil, Gotshal & Manges LLP; Regina Olshan, Skadden, Arps, Slate, Meagher & Flom, LLP; Andrew L. Oringer, Ropes & Gray LLP; Erica F. Schohn, Skadden, Arps, Slate, Meagher & Flom, LLP
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Section 409A of the Internal Revenue Code represents the first comprehensive codification of the rules governing the federal income-taxation of nonqualified deferred compensation. The rules under Section 409A are extremely detailed and complex, and continue to cause confusion and uncertainty. One particularly confusing area relates to Section 409A issues that may arise because a customary general release of claims is incorporated into a severance, settlement or similar agreement as a condition for a service provider to receive certain payments. BNA panelists will explain the issue, suggest a number of practical approaches focusing both on arrangements that involve deferred compensation, and on arrangements that do not. Also discussed, will be how to correct a problem that already exists, including the impact of the corrections notice recently released.

Program Highlights:

• Understand the issues surrounding the use of releases, on both the tax, and non-tax side.
• Have a strategy for dealing with practical concerns, and be ready to explain to the employee or other service provider why adjustments may have to be made.
• Have standard language for use in different types of agreements
• Understand that, regardless of how it is decided to proceed, the issue should not be ignored.
• Be ready to address compliance errors.

Who Should Attend?

• Employers and other service recipients, so that severance, settlement and similar arrangements can be administered in a compliant way.
• Attorneys and other advisors to employers and other service recipients, so that the advisors can better understand the issues.
• Consultants, attorneys and other advisors to executives and other employees, so that they can be in a better position to understand the issues facing their clients.

Andrew L. Gaines, Weil, Gotshal & Manges LLP; Regina Olshan, Skadden, Arps, Slate, Meagher & Flom, LLP; Andrew L. Oringer, Ropes & Gray LLP; Erica F. Schohn, Skadden, Arps, Slate, Meagher & Flom, LLP

Andrew L. Gaines
Partner
Weil, Gotshal & Manges LLP
New York, NY

Andrew Gaines is a partner in the Tax practice at Weil, Gotshal & Manges LLP where he specializes in executive compensation and employee benefits matters. Mr. Gaines advises employers on all aspects of executive compensation and employee benefit plans and their treatment in corporate transactions and in bankruptcy. Mr. Gaines counsels investment fund sponsors on ERISA issues associated with the formation of private investment funds and the structuring of underlying investments. He also frequently counsels large institutional pension investors on fiduciary issues arising in connection with investing in private investment funds. He represents employers and executives in the negotiation of employment and severance agreements.

Regina Olshan
Partner
Skadden, Arps, Slate, Meagher & Flom, LLP
New York, NY

Regina Olshan is an executive compensation and benefits partner in Skaddens New York office. Her practice focuses on advising companies, executives and boards on navigating the regulatory complexities of executive compensation and benefits. She is the author of the forthcoming Section 409A Handbook.

Andrew L. Oringer
Partner
Ropes & Gray LLP
New York, NY

Andrew L. Oringer, a partner in Ropes & Gray's Tax & Benefits Department, leads the firm's ERISA and executive compensation practice in New York. Mr. Oringer is chairman of the Fiduciary and Investments Sub-Committee of the Employee Benefits Committee of the ABA's Section of Taxation, and co-chair of the Employee Benefits Committee of the Tax Section of the New York State Bar Association and a member of the Tax Section's Executive Committee. He serves on the advisory boards of the BNA Pension & Benefits Reporter and the Tax Management Compensation Planning Journal, and is an adjunct law professor at Hofstra University's law school. He is also the author of the chapter on releases in BNA's recently published Section 409A Handbook.

Erica F. Schohn
Associate
Skadden, Arps, Slate, Meagher & Flom, LLP
New York, NY

Erica F. Schohn is an associate in the Executive Compensation and Benefits practice group of Skadden, Arps, Slate, Meagher & Flom LLP. Ms. Schohns practice focuses on compensation and benefits arrangements in the context of corporate transactions (including mergers and acquisitions, public offerings, and bankruptcy reorganizations), the negotiation of executive employment and severance arrangements, and the SEC rules governing executive compensation disclosure, and tax planning. She is the author of the forthcoming Section 409A Handbook.