Employee Benefits & Executive Compensation Blog

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

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Michael Album

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Michael J. Album is a partner in the Employee Benefits & Executive Compensation Group, and represents companies and compensation committees, private equity firms and hedge funds, and CEOs, senior executives (in numerous business sectors) and portfolio managers on a full range of executive compensation matters. As part of his practice he has represented management teams in numerous management buy-outs (including in the health care, retail and asset management sectors) and has represented “founders” and partners in a variety of businesses on restructuring and “business divorce” matters.

Michael also is a member of the Restrictive Covenants, Trade Secrets & Unfair Competition, which is an interdisciplinary group at Proskauer that represents clients on non-compete, trade secret and intellectual property matters.

Michael has written and spoken extensively in the area of executive compensation. He has contributed to the NCEO publication Selected Issues in Equity Compensation (2019 Edition) and Dow Jones Private Equity Analyst – Global Compensation Study, and his articles on MBO compensation have been featured in two publications (Private Equity Mathematics and Human Capital in Private Equity).

His other articles have appeared in The Business Lawyer, Bloomberg, New York Law Journal, Employment Relations Today, and Venture Capital Review and he has been a featured speaker on executive compensation developments at ALI-ABA, Dow Jones Private Equity and other webinars and seminars.

In addition, Michael has served on the Board of Directors of the Yale Law School Fund, and as co-Chairman of his Reunion Class Campaign for the Yale Law School Fund.

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Tax Court Decision Interprets Profits Interest “Safe Harbor” under IRS Rev. Proc. 93-27

By Michael Album, Kate Napalkova, David Teigman, Nicholas LaSpina and Tyler Forni on Posted in Executive Compensation
The Tax Court’s May 3, 2023, decision in ES NPA Holding, LLC v. Commissioner (T.C. Memo 2023‑55), upholding a taxpayer’s position to characterize a partnership interest as a profits interest under the “safe harbor” of IRS Revenue Procedure 93-27 (as clarified by IRS Revenue Procedure 2001-43), provides helpful guidance to issuers of profits interests, including … Continue Reading

Final SEC Clawback Rules: Key Dates that Issuers Need to Know

By Michael Album, Colleen Hart, Kate Napalkova, Andrea Rattner, Seth Safra, David Teigman and Heather Monte on Posted in Compensation Committees, Executive Compensation
On November 28, 2022, the Securities and Exchange Commission (the “SEC”) published the final clawback rules (the “Final Rules”) under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) in the Federal Register. Now that the Final Rules have been published in the Federal Register, issuers should be aware of the following key deadlines[1]: … Continue Reading

Long Time Coming: SEC Adopts Final Dodd-Frank Clawback Rules

By Michael Album, Colleen Hart, Kate Napalkova, Andrea Rattner, Seth Safra, David Teigman and Heather Monte on Posted in Compensation Committees, Executive Compensation
Twelve years after the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act, and many years after the Securities and Exchange Commission started considering regulations implementing the clawback provisions of Dodd-Frank, the SEC published the Final “Clawback” Rules (the “Final Rules”) on October 26, 2022. The Final Rules task national securities exchanges (“exchanges”) … Continue Reading

“Clawback Comeback”: DOJ’s New Focus on Clawbacks to Prevent Corporate Crime

By Michael Album, Justin Alex, Kate Napalkova, Dietrich Snell and Michael Guggenheim on Posted in Compensation Committees, Executive Compensation
In September 2022, Deputy Attorney General Lisa Monaco delivered remarks unveiling the Department of Justice’s revised corporate crime guidance to “prioritize and prosecute corporate crime.” She reiterated that the number one priority for the DOJ is “individual accountability.” To that end, Monaco emphasized that the DOJ will “reward” companies that claw back compensation from executives … Continue Reading

Practical Considerations for New Pay vs. Performance Disclosure Requirement

By Michael Album, Rebecca Fishbein, Colleen Hart, Kate Napalkova, Andrea Rattner and Seth Safra on Posted in Disclosure, Executive Compensation
The SEC’s final rule on Pay Versus Performance becomes effective on October 8, 2022, and will require new executive compensation disclosures for the upcoming proxy season (for annual proxy statements that include executive compensation disclosure for fiscal years ending on or after December 16, 2022). The new rule implements a requirement of the 2010 Dodd-Frank … Continue Reading

CEO Self-Evaluation: To Thine Own Self (Assessment) Be True

By Michael Album and Aaron Weiss on Posted in Executive Compensation
“Report cards” may bring to mind evaluating middle school students, not CEOs of multi-billion dollar companies. But over the last decade, some companies have adopted a CEO “self-assessment” for evaluating the performance of CEOs. This approach can take a myriad of forms, ranging from an informal discussion with the CEO to having the CEO prepare … Continue Reading

Terminating a CEO for Cause

By Michael Album and Katrine Magas on Posted in Executive Compensation
Terminating a CEO “for cause” requires that the board of directors (“Board”) of the employer focus on two questions – What is the applicable standard for cause? Do the facts and circumstances satisfy this applicable standard? The consequences of a “for cause” termination can be severe, with the former executive forfeiting equity awards, having to … Continue Reading

[Podcast]: Nuts and Bolts on a Management Buyout (Part 7 of 7)

By Michael Album and Joshua Miller on Posted in Benefits Brief Podcast
In the final episode of a seven-part series for The Proskauer Benefits Brief, partners Michael Album and Josh Miller talk about employment agreements in the context of a management buyout. They go over the key terms and issues that management should focus on when reviewing and negotiating their go-forward employment arrangements, compensation structure, severance protection and restrictive covenants with … Continue Reading

[Podcast]: Nuts and Bolts on a Management Buyout (Part 6 of 7)

By Michael Album and Joshua Miller on Posted in Benefits Brief Podcast
In this episode of The Proskauer Benefits Brief, partners Michael Album and Josh Miller discuss the incentive equity package that management will be offered in the buyout, including the structure of the incentive pool, vesting, and favorable tax treatment of incentive grants. Tune in and listen for the latest insights and perspective on management buyouts in this sixth of … Continue Reading

[Podcast]: Nuts and Bolts on a Management Buyout (Part 5 of 7)

By Michael Album and Joshua Miller on Posted in Benefits Brief Podcast
In this episode of The Proskauer Benefits Brief, partners Michael Album and Josh Miller are back to continue their discussion of the rights that management gets when it “rolls” old equity into new equity in the buyout vehicle and then introduce incentive equity awards for management. Be sure to tune in and listen for the latest on management buyouts … Continue Reading

[Podcast]: Nuts and Bolts on a Management Buyout (Part 4 of 7)

By Michael Album and Joshua Miller on Posted in Benefits Brief Podcast
In this episode of The Proskauer Benefits Brief, partners Michael Album and Josh Miller return to discuss how management can use a “template” to have a bidder identify the way compensation issues will be addressed in an MBO. They also discuss the “rollover” by management of their equity in an MBO. Be sure to tune in and listen for … Continue Reading

[Podcast]: Nuts and Bolts on a Management Buyout (Part 3 of 7)

By Michael Album and Joshua Miller on Posted in Benefits Brief Podcast
In this episode of The Proskauer Benefits Brief, partners Michael Album and Josh Miller return to discuss the nuts and bolts of a management buyout, and in particular, how management deals with the selling sponsor and the bidder, and starts to develop their own compensation packages post-closing and consider deal bonuses from the selling sponsor. … Continue Reading

[Podcast]: Nuts and Bolts on a Management Buyout (Part 2 of 7)

By Michael Album and Joshua Miller on Posted in Benefits Brief Podcast
In this episode of The Proskauer Benefits Brief, partners Michael Album and Josh Miller return to discuss the nuts and bolts on a management buyout. As part of their discussion they highlight the different types of transactions (single bidder vs. multi-bidder) and the various tasks that management faces in handling the process and as a … Continue Reading

[Podcast]: Nuts and Bolts on a Management Buyout (Part 1 of 7)

By Michael Album and Joshua Miller on Posted in Benefits Brief Podcast
In this episode of The Proskauer Benefits Brief, partners Michael Album and Josh Miller discuss the nuts and bolts on a management buyout, and in particular, the issues and strategies that management needs to know. They examine the structure of a management buyout and discuss in detail the process behind the buy-out and how it … Continue Reading
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