Seth Safra
Partner
Seth J. Safra is co-chair of Proskauer’s Employee Benefits & Executive Compensation Group. Described by clients as “extremely knowledgeable, practical, and strategic,” Seth advises clients on compensation and benefit programs.
Seth’s experience covers a broad range of retirement plan designs, from traditional defined benefit to cash balance and floor-offset arrangements, ESOPs and 401(k) plans—often coordinating qualified and non-qualified arrangements. He also advises tax-exempt and governmental employers on 403(b) and 457 arrangements, as well as innovative new plan designs; and he advises on ERISA compliance for investments.
On the health and welfare side, Seth helps employers provide benefits that are cost-effective and competitive. He advises on plan design, including consumer-driven health plans with HSAs, retiree medical, fringe benefits, and severance programs, ERISA preemption, and tax and other compliance issues, such as nondiscrimination and cafeteria plan rules.
Seth also advises for-profit and non-profit employers, compensation committees, and boards on executive employment, deferred compensation, change in control, and equity and other incentive arrangements. In addition, he advises on compensation and benefits in corporate transactions.
Seth represents clients before the Department of Labor, IRS and other government agencies.
Seth has been recognized by Chambers USA, The Legal 500, Best Lawyers, Law360, Human Resource Executive, Lawdragon and Super Lawyers.
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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
A recent Seventh Circuit decision affirms the principle that an ERISA severance plan can reserve to the employer discretion over who is eligible for severance benefits. The case is Carlson v. Northrop Grumman Severance Plan, No. 22-1764, __ F.4th __, 2023 WL 3299703 (7th Cir. May 8, 2023).… Continue Reading
The grab bag of retirement provisions in the SECURE 2.0 legislation that was enacted at the end of 2022 included an expansion of the ability for a section 401(k) or 403(b) plan, or a governmental section 457(b) plan, to provide matching contributions on participants’ student loan payments. Effective for plan years starting after December 31, … Continue Reading
Proxy advisory firms Institutional Shareholder Services (“ISS”) and Glass Lewis (“GL”) each published their annual policy updates for 2023, which updates made certain changes relating to executive compensation.[1] As a general matter, the changes are incremental to the existing policies and do not significantly change the rubric by which ISS and GL review compensation programs. … Continue Reading
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
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
On October 21st, the IRS announced changes to its qualified plan determination letter program. Most notably, the program has been expanded to include section 403(b) tax-sheltered annuity plans (“403(b) plans”). Although 403(b) plans are similar to tax-qualified defined contribution plans (“401(a) plans”), they are subject to unique rules, and, until now, the IRS has not … Continue Reading
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
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
In McQuillin v. Hartford Life and Accident Ins. Co., 36 F.4th 416 (2d Cir. 2022), the U.S Court of Appeals for the Second Circuit restored a claimant’s action for disability benefits due to the plan administrator’s failure to adhere to a procedural deadline. The Court concluded that the administrator’s failure resulted in automatic exhaustion of … Continue Reading
You do not need a Lexis or Westlaw subscription to know that major cases and significant judgments have sometimes hinged on the meaning of a single word, or the placement of a single Oxford comma. We have a recent case to add to the list: Weinberg v. Waystar, Inc., et al., which was an executive … Continue Reading
A recent decision by the U.S. Court of Appeals for the Ninth Circuit (Wit et al. v. United Behavioral Health and Alexander et al. v. United Behavioral Health) exemplifies the challenge in balancing a desire to cover evolving treatments for mental health and substance abuse disorders against plan sponsors’ and insurers’ general authority over plan … Continue Reading
Effective April 1, 2022, high-deductible health plans can once again offer first-dollar coverage for telehealth and other remote services without making participants ineligible for health savings account (“HSA”) contributions. The relief runs only through the end of 2022, and the regular high-deductible health plan requirements generally apply for the months of January through March 2022. … 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
Whether a one-time payment of benefits constitutes an employee benefit plan under ERISA has been the source of some consternation in the courts for many years. The Fifth Circuit, in Atkins v. CB&I, LLC, recently had occasion to consider the issue and held that a bonus conditioned on completing a project was not an ERISA … 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
Employers that are tax-exempt or have tax-exempt affiliates (for example, a foundation) should pay close attention to a 21% excise tax under Section 4960 of the Internal Revenue Code on certain executive compensation. Final Regulations under Section 4960 are described here. The discussion includes traps for the unwary. Please reach out to your Proskauer contact … 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
****UPDATE: These proposed regulations were not published in the Federal Register before President Biden’s inauguration. In accordance with the Memorandum for the Heads of Executive Departments and Agencies, issued by Chief of Staff Ronald A. Klain, the proposed regulations have been withdrawn for review by the Biden administration.**** On January 7th, the EEOC released proposed … 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
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
Seventh Circuit Affirms Discretion Over Who Gets Severance Benefits
By Seth Safra and Sydney Juliano on Posted in Class Actions, ERISA Coverage, Severance
SECURE 2.0 Opens the Door on Retirement Match Based on Student Loan Payments
By Amanda Karpovich and Seth Safra on Posted in 401(k) Plans, 403(b) Plans, SECURE 2.0
Proxy Season Greetings: ISS and Glass Lewis Announce Policy Updates Ahead of the 2023 Proxy Season
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
Final SEC Clawback Rules: Key Dates that Issuers Need to Know
IRS Opens Determination Letter Program to Individually Designed 403(b) Plans
By Seth Safra, Katrina McCann and Jesse T. Foley on Posted in 403(b) Plans, Benefit Plan Compliance, IRS, IRS Guidance, Qualified Plans
Long Time Coming: SEC Adopts Final Dodd-Frank Clawback Rules
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
Second Circuit Decision Illustrates Importance of Following Claims Procedures, and Drastic Consequences of Procedural Misstep
By Seth Safra and Daniel Wesson on Posted in ERISA Coverage
A Conjunction is Worth Thousands of Dollars: Recent Case Highlights Significance of “And” vs. “Or”
By Seth Safra, David Teigman, Aaron Weiss and Gregory Zeien on Posted in 401(k) Plans, 403(b) Plans, Cafeteria Plans, Disclosure, Executive Compensation, Release Agreements / Settlements, Settlements
Ninth Circuit Defers to Plan Design and Administrative Discretion on Bounds of Mental Health Coverage
By Joseph Clark, Seth Safra and Aaron Weiss on Posted in ERISA Coverage, Mental Health Parity
Congress Reopens Door For HSA With No-Deductible Telehealth, But With a Hole
By Aaron Weiss and Seth Safra on Posted in Coronavirus, HSA
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
Fifth Circuit Rules that Project Completion Bonus is Not an ERISA Severance Plan
By Seth Safra, Russell Hirschhorn and Sydney Juliano on Posted in ERISA Coverage
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
Tax-Exempt Executive Compensation Excise Tax Regulations (Section 4960) Finalized
By Seth Safra, Amanda H. Nussbaum, James Huffman and Katrine Magas on Posted in Executive Compensation, IRS Guidance
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
EEOC Proposed Wellness Regulation Restricts Incentives For Voluntary Programs But Offers Path For Programs That Satisfy ACA Standard
By Katrina McCann and Seth Safra on Posted in Equal Employment Opportunity Commission, Wellness Programs
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
