Ira G. Bogner
Ira G. Bogner is the immediate former chair of the Firm’s Tax Department and a member of the Employee Benefits & Executive Compensation Group and is currently a member of the Firm's Executive Committee. Ira represents a varied list of clients, including financial service companies, entertainment industry clients, and tax-exempt organizations, and also actively represents individual executives in executive compensation matters.
Ira counsels clients with respect to the tax, securities law disclosure, corporate governance, stock exchange and other requirements relevant to executive compensation arrangements. Ira also provides advice regarding equity arrangements, employment agreements, change in control agreements and all other types of executive compensation arrangements, including guidance regarding “409A,” “162m,” “457A,” and “280G.”
Ira frequently is called on to structure and analyze alternative investments for pension trusts and other exempt organizations. He also works with the Firm’s corporate and real estate lawyers in structuring and maintaining investment funds that include participation by pension plans. Through his work in the investment fund area Ira has obtained substantial experience in applying the rules provided under the “plan asset” regulations, including the operation of venture capital operating companies and real estate operating companies. He has assisted in the formation of private equity, real estate, infrastructure and hedge funds, including “fund of funds.” Ira also has advised clients on both avoiding ERISA “plan asset” status and operating an investment fund in accordance with ERISA.
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On July 27, 2022, the U.S. Department of Labor (the “DOL”) issued notice of a proposed amendment (the “Proposed Amendment”) to Prohibited Transaction Class Exemption 84-14 (which is commonly referred to as the “QPAM Exemption”) that would (as described in more detail below) significantly amend certain of the exemption’s conditions, including: increasing the equity/net worth … Continue Reading
On December 21, 2021, the Department of Labor (the “DOL”) published a Supplemental Statement (the “Supplemental Statement”) to its June 3, 2020 Information Letter (the “2020 Letter”) addressing fiduciary considerations for including private equity within an investment option under an ERISA-covered defined contribution plan (e.g., a 401(k) or 403(b) plan). In response to questions and … Continue Reading
On October 14, 2021, the U.S. Department of Labor’s Employee Benefits Security Administration (the “DOL”) published in the Federal Register a new proposed regulation (the “Proposed Rules”)[1] on fiduciary responsibility in selecting ERISA plan investments and exercising shareholder rights (proxy voting). The Proposed Rules reflect an effort to “warm” what the current DOL perceives as … Continue Reading
On November 3, 2020, the U.S. Department of Labor’s Office of the Solicitor of Labor (the “DOL”) issued an opinion letter (the “2020 Letter”) to the Securities Industry and Financial Markets Association (“SIFMA”) stating that it would not view a conviction under foreign law as a disqualifying event under Prohibited Transaction Class Exemption 84-14 (the … Continue Reading
On March 10, 2021, the U.S. Department of Labor (the “DOL”) issued a statement that it intends to revisit its final rules issued late last year on “Financial Factors in Selecting Plan Investments” (summarized here) and “Fiduciary Duties Regarding Proxy Voting and Shareholder Rights” (summarized here), which some viewed as restricting “do-good” or “ESG” investing … Continue Reading
On October 30, 2020, the U.S. Department of Labor (the “DOL”) issued a final rule on “ESG” investing (summarized here) which requires ERISA plan fiduciaries to base investment decisions on financial factors alone, prohibits fiduciaries from selecting investments based on non-pecuniary considerations, and which could restrict “do-good” or “ESG” investing (the “ESG Rule”). However, the … Continue Reading
****UPDATE: The Exemption described in this notice appears to be covered by the regulatory freeze described in this Memorandum for the Heads of Executive Departments and Agencies, issued by Chief of Staff Ronald A. Klain on January 20, 2021. Accordingly, we expect the effective date of the Exemption to be postponed for 60 days (until March 22, … Continue Reading
On October 30, 2020, the U.S. Department of Labor (the “DOL”) issued a final rule on factors for selecting plan investments, which restricts “do-good” or “ESG” investing. In response to public comments, the final rule rolls back some of the restrictions and burdens from its proposed rule issued in June (summarized here), but it reaffirms … Continue Reading
On September 4, 2020, the Department of Labor (“DOL”) published a proposed rule (the “Proposed Rule”) that would confirm its position that ERISA’s fiduciary duties of prudence and loyalty apply to an ERISA plan fiduciary’s exercise of shareholder rights, including proxy voting, proxy voting policies and guidelines, and the selection and monitoring of proxy advisory … Continue Reading
The U.S. Department of Labor’s (the “DOL”) new “fiduciary rule” package, issued on June 29, 2020, and published in the Federal Register on July 7, 2020, has three important components: The DOL has formally reinstated its “five-part test” initially set forth in its 1975 regulation for determining whether a person is a “fiduciary” by reason … Continue Reading
On June 23, 2020, the U.S. Department of Labor (the “DOL”) issued a proposed rule (which was published in the Federal Register on June 30, 2020) that would amend its “investment duties” regulation set forth at 29 C.F.R. § 2550.404a-1. The DOL states that the proposed rule is intended to “eliminate confusion” and limit when and … Continue Reading
On June 3, 2020, the Department of Labor (the “DOL”) published an Information Letter confirming that investment options under a defined contribution plan (e.g., a 401(k) or 403(b) plan) may include a limited allocation to private equity. Notably, the Letter does not discuss direct investment in private equity funds (for example, by adding a PE … Continue Reading
For a number of ERISA, tax and other regulatory reasons, it may be desirable for the manager or sponsor of an investment fund or other structure to utilize what is often referred to as a plan asset “hard-wired” conduit feeder. Tune in to this podcast as partner Ira Bogner and senior counsel Adam Scoll discuss more about these structures, … Continue Reading
In this episode of the Proskauer Benefits Brief, partner Ira Bogner and senior counsel Adam Scoll discuss VCOC “Management Rights.” For VCOC compliance purposes, “management rights” are contractual rights directly between an investing entity and an operating company by which the investing entity can substantially participate in, or substantially influence the conduct of, the management of the operating company. Unfortunately, … Continue Reading
Last Friday, the U.S. Court of Appeals for the First Circuit ruled that two co-investing Sun Capital private equity funds (the Sun Funds)[1] had not created an implied “partnership-in-fact” for purposes of determining whether the Sun Funds were under “common control” with their portfolio company, Scott Brass, Inc. (SBI) – resulting in a ruling that … Continue Reading
In this episode of the Proskauer Benefits Brief, partner Ira Bogner and senior counsel Adam Scoll discuss ERISA’s bonding requirements. ERISA’s bonding rules generally require that every fiduciary of an ERISA-covered employee benefit plan and every person who handles funds or other property of such a plan be bonded. We will break down these bonding rules and their importance, … Continue Reading
In this episode of The Proskauer Benefits Brief, partner Ira Bogner and senior counsel Adam Scoll discuss the key considerations for ERISA plan fiduciaries when delegating investment authority over plan assets. We will break down some of the material ERISA issues that may apply when an ERISA plan hires a separate account investment manager or invests in a private investment … Continue Reading
In this episode of The Proskauer Benefits Brief, partner Ira Bogner and senior counsel Adam Scoll discuss the key considerations for ERISA investors in private investment funds, as well as a plan fiduciary’s overarching fiduciary duties and responsibilities that are related thereto. One of the first key considerations is to determine the plan asset status of the … Continue Reading
The Internal Revenue Service (the “IRS”) has issued Notice 2017-75 (the “Notice”), which provides certain limited relief from the strict requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), in order to pay income taxes on deferrals attributable to services performed before 2009 that are required to be included … Continue Reading
Today, the U.S. Department of Labor will release its highly-anticipated Final Rule and Exemptions addressing when a person providing investment advice with respect to an employee benefit plan or individual retirement account is considered to be a “fiduciary” under the Employee Retirement Income Security Act of 1974 and the Internal Revenue Code. According to a … Continue Reading
As we previously reported, in Sun Capital, the U.S. Court of Appeals for the First Circuit held in 2013 that a private investment fund, pursuant to the so-called “investment plus” test first articulated by the Pension Benefit Guaranty Corporation (the PBGC), was engaged in a “trade or business” under the Employee Retirement Income Security Act … Continue Reading
There are few sure things in life, and although it is probably safe to say that ERISA disclosure regulations would not be considered one of them, there has certainly been a steady stream of new ERISA-related disclosure and reporting obligations being imposed on plan fiduciaries. The latest installment from the U.S. Department of Labor came … Continue Reading
On July 24, 2013, the U.S. Court of Appeals for the First Circuit ruled in Sun Capital Partners III, LP v. New England Teamsters and Trucking Industry Pension Fund (No. 12-2312, 2013 WL 3814984) that a private equity investment fund was engaged in a “trade or business” under ERISA, and, therefore, could be part of … Continue Reading
DOL Proposes Significant Changes to the QPAM Exemption – What You Need to Know
By Ira G. Bogner, Neal Schelberg, Steven Weinstein, Adam Scoll, Pamela Onufer and Rebecca Fishbein on Posted in Department of Labor
DOL Statement on Private Equity Investment Emphasizes Fiduciary Responsibility
By Ira G. Bogner, Seth Safra, Adam Scoll, Nicholas LaSpina and Andrea Ewalefo on Posted in ERISA Coverage
DOL’s Latest ESG Proposal: The More Things Change, the More They Stay the Same
By Ira G. Bogner, Robert Projansky, Kate Napalkova, Seth Safra, Adam Scoll and Nicholas LaSpina on Posted in Department of Labor, Fiduciary
What Happens Abroad, Apparently Does Not Stay Abroad – DOL Revokes Trump Administration Guidance That Provided Relief to QPAMs for Convictions Under Foreign Law
By Ira G. Bogner, Robert Projansky, Seth Safra, Steven Weinstein, Adam Scoll and Kaitlin Hulbert on Posted in Department of Labor
DOL Will Not Enforce Trump Administration’s ERISA “ESG” Investing and Proxy Voting Rules
By Ira G. Bogner, Seth Safra, Russell Hirschhorn and Adam Scoll on Posted in Department of Labor, ERISA Coverage, Fiduciary
Biden Administration Requests Review of DOL’s Final “ESG” Rules for ERISA Fiduciaries – What Does that Mean for the DOL’s Final Proxy Voting Rules?
By Ira G. Bogner, Seth Safra and Adam Scoll on Posted in ERISA Coverage, Fiduciary
DOL Finalizes New Prohibited Transaction Exemption for “Investment Advice”, With Statement That Fiduciary Standard May Apply to IRA Rollover Guidance
By Ira G. Bogner, Seth Safra and Adam Scoll on Posted in Department of Labor
DOL Issues Final “ESG” Rule Restricting ERISA Fiduciary Consideration of Non-Pecuniary Investment Factors
By Ira G. Bogner, Russell Hirschhorn, Seth Safra, Steven Weinstein and Adam Scoll on Posted in Department of Labor, Fiduciary
To Vote, or Not to Vote, That is the DOL’s Proxy Voting Question for ERISA Fiduciaries
By Ira G. Bogner, Seth Safra, Steven Weinstein, Adam Scoll and Kaitlin Hulbert on Posted in Department of Labor, Fiduciary
New DOL Fiduciary Rule Package: What You Really Need to Know
By Ira G. Bogner, Seth Safra, Adam Scoll and Pamela Onufer on Posted in Department of Labor, Fiduciary
Department of Labor Proposal Would Curtail ESG Investing
By Ira G. Bogner, Russell Hirschhorn, Seth Safra, Steven Weinstein, Adam Scoll and Kyle Hansen on Posted in Department of Labor
DOL Information Letter Outlines Fiduciary Considerations for Including Private Equity Allocations in Defined Contribution Plan Investments
By Ira G. Bogner, Seth Safra, Adam Scoll, Pamela Onufer and Kaitlin Hulbert on Posted in 401(k) Plans, Department of Labor, Fiduciary
[Podcast]: ERISA Plan Asset “Hard-Wired” Conduit Feeders
By Ira G. Bogner and Adam Scoll on Posted in Benefits Brief Podcast, Fiduciary, Plan Assets
[Podcast]: VCOC Management Rights
By Ira G. Bogner and Adam Scoll on Posted in Benefits Brief Podcast
Sun Capital Update: First Circuit Reverses District Court’s “Partnership-in-Fact” Holding and Finds Private Equity Funds Not Part of Controlled Group and Not Liable for Portfolio Company’s Pension Liabilities
By Ira G. Bogner, Ira Golub, Justin Alex, Adam Scoll and Jennifer Rigterink on Posted in Controlled Groups, Withdrawal Liability
[Podcast]: ERISA’s Bonding Requirements
By Ira G. Bogner and Adam Scoll on Posted in Benefits Brief Podcast
[Podcast]: Key Considerations for ERISA Plan Fiduciaries When Delegating Investment Authority
[Podcast]: Key Considerations for ERISA Investors in Private Investment Funds
By Ira G. Bogner and Adam Scoll on Posted in Benefits Brief Podcast
IRS Issues Limited Section 409A Relief to Pay Income Taxes on Pre-2009 Section 457A Deferrals
By Amanda H. Nussbaum, Adam Scoll and Ira G. Bogner on Posted in Executive Compensation
U.S. DOL To Issue Final Rule and Exemptions on Fiduciary Standards
By David Picon, Ira G. Bogner, Russell Hirschhorn and Robert Projansky on Posted in Department of Labor, Fiduciary
Sun Capital Court Finds Co-Investing Funds Part of Controlled Group and Liable for Portfolio Company’s Pension Liabilities
By Colleen Hart, Ira G. Bogner and Justin Alex on Posted in Controlled Groups, PBGC, Withdrawal Liability
Death, Taxes and …ERISA Disclosure Regulations?
By Adam Scoll and Ira G. Bogner on Posted in Department of Labor, Disclosure
Private Investment Funds May Be Liable For Portfolio Company’s Underfunded Pension Liabilities Under First Circuit Ruling
By Adam Scoll, Ira G. Bogner, Ira Golub and Justin Alex on Posted in Controlled Groups, Multiemployer Funds, Withdrawal Liability
