Employee Benefits & Executive Compensation Blog

The View from Proskauer on Developments in the World of Employee Benefits, Executive Compensation & ERISA Litigation

Photo of Ira G. Bogner

Ira G. Bogner

Partner
View full bio

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.

Areas of Concentration

Ira has provided guidance to clients on a wide variety of matters in the areas of employee benefits and executive compensation, including:

  • investment of plan assets

  • implementation of employee benefit plans

  • employee benefit issues in mergers and acquisitions

  • awarding of equity-based compensation

  • negotiation and drafting of employment agreements and severance arrangements

  • structuring, analyzing and maintaining investment funds that are suitable for plan investors

Thought Leadership

Ira has published a number of articles in publications such as The New York Law Journal, The New Jersey Law Journal, The Daily Deal, The Journal of Pension Planning and Compliance, Mergers and Acquisitions (The Monthly Tax Journal), The Journal of Taxation and Regulation of Financial Institutions, The Metropolitan Corporate Counsel, European Private Equity & Venture Capital Associations, The LPA Anatomised and Private Equity International and has been named to the Board of Advisors of the Journal of Taxation and Regulation of Financial Institutions. He also has lectured on topics such as the classification of workers, drafting employment agreements, equity alternatives for senior executives, investing IRA assets, the plan asset regulations, shareholder approval of equity plans, Code Section 409A, and key provisions for ERISA investors investing in a private equity fund.

Recognition

Ira has been recognized and ranked by various directories. US Legal 500 has carried the following comments: “Ira Bogner is ‘available, responsive and knowledgeable;” “Ira Bogner ‘provides a level of comfort with respect to business issues that is rare in the world of ERISA;” “Ira Bogner is the ‘go-to guy for fund sponsors needing help with ERISA.’"

Subscribe to all posts by Ira G. Bogner

Latest ERISA Developments on the IRA Rollover Fiduciary Rules, the DOL’s QPAM Exemption Amendment Proposal and the DOL’s ESG Rules

By Ira G. Bogner, Seth Safra and Adam Scoll on Posted in Department of Labor, Fiduciary
In addition to the excitement of the upcoming outdoor concert season, Proskauer’s lawyers are anxiously awaiting VERY different forms of entertainment: the next installment of the never-ending saga of U.S. Department of Labor (“DOL”) guidance on who is considered an investment advice fiduciary, including whether the fiduciary standard applies to advice on whether to take … Continue Reading

[Podcast]: DOL’s 2022 Final ESG Rules

By Ira G. Bogner, Adam Scoll and Tanusha Yarlagadda on Posted in Benefits Brief Podcast
In this episode of The Proskauer Benefits Brief, Proskauer partners Ira Bogner and Adam Scoll and law clerk Tanusha Yarlagadda discuss the Department of Labor’s final ESG rules issued on November 22, 2022, and how those rules affect the consideration by ERISA fiduciaries of environmental, social, and governance or “ESG” factors when making investment decisions and exercising shareholder rights, such as … Continue Reading

DOL’s Final ESG Rules Reflect Warmer Attitude Toward ESG, But Maintain Bedrock Principle that Risk and Return Cannot Be Sacrificed

By Ira G. Bogner, Seth Safra, Adam Scoll and Tanusha Yarlagadda on Posted in Department of Labor, Fiduciary
On November 22, 2022, the U.S. Department of Labor’s Employee Benefits Security Administration (the “DOL”) released final regulations (the “Final Rules”) that are intended to be more supportive of ERISA fiduciaries considering environmental, social, and governance factors (“ESG”) in investment decisions as compared to the Trump administration’s 2020 regulations (the “2020 Regulations”).  The Final Rules … 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
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

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
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

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
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

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
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

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
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

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
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

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
****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

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
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

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
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

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
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

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
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

[Podcast]: ERISA Plan Asset “Hard-Wired” Conduit Feeders

By Ira G. Bogner and Adam Scoll on Posted in Benefits Brief Podcast, Fiduciary, Plan Assets
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

[Podcast]: VCOC Management Rights

By Ira G. Bogner and Adam Scoll on Posted in Benefits Brief Podcast
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

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
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

[Podcast]: ERISA’s Bonding Requirements

By Ira G. Bogner and Adam Scoll on Posted in Benefits Brief Podcast
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

[Podcast]: Key Considerations for ERISA Plan Fiduciaries When Delegating Investment Authority

By Ira G. Bogner and Adam Scoll on Posted in Benefits Brief Podcast, Defined Contribution Plan Investment Litigation, Fiduciary
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

[Podcast]: Key Considerations for ERISA Investors in Private Investment Funds

By Ira G. Bogner and Adam Scoll on Posted in Benefits Brief Podcast
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

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
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

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
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

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
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
LexBlog

This website uses third party cookies, over which we have no control. To deactivate the use of third party advertising cookies, you should alter the settings in your browser.

OK