The Setting Every Community Up for Retirement Enhancement (SECURE) Act of 2019 was passed in the US House of Representatives on May 23. While the act is still pending in the Senate, it contains many provisions that would affect sponsors of large defined contribution and 401(k) plans, as well as sponsors of traditional pension plans and retirement plan service providers. Please see our LawFlash summarizing the act’s key provisions and noting the legislative hurdles that it faces.

The Basics

Representations and warranties insurance (R&W Insurance) protects a party from financial losses resulting from inaccuracies in the representations and warranties made about a target company or business in connection with certain corporate transactions such as mergers and acquisitions. R&W Insurance policies are made up of both buy-side (most common) and sell-side policies.

In a traditional buy-side R&W Insurance policy, the buyer is the insured and the objective is to provide coverage against financial loss suffered as a result of a breach of the seller’s representations and warranties. The parties’ exposure in the case of a breach of the representations and warranties is limited to a relatively low amount referred to as the retention amount. In most R&W Insurance policies, the retention amount is generally equal to between 1–3% of the enterprise value of the transaction. The R&W Insurance policy protects against any exposure in excess of the retention amount and up to a negotiated limit.

Private companies grant stock options to their employees as a way to retain and motivate them and to reward their employees for the company’s success. Included below are five common mistakes we have come across.

The Internal Revenue Service (IRS) has primary jurisdiction over the qualified status of retirement plans, and this jurisdiction includes examining plans. An IRS agent can notify a plan sponsor at any time that its plan has been selected for audit. A plan sponsor should thus consider a compliance self-review to minimize the pain of audit and ensure that the plan is operating correctly, that its plan documents comport with plan operation, and that plan records are complete and organized before the IRS comes knocking. Please see our recent LawFlash detailing the top 10 issues of IRS focus in its audit of qualified plans. Also, please see our prior LawFlash addressing the top 10 areas of focus in US Department of Labor (DOL) investigations of retirement plans.

If you have questions about IRS or DOL investigations of retirement plans, please reach out to the LawFlash authors or your Morgan Lewis contacts.

Please join our July 16 webinar, Final HRA Regulations: Roadmap to the Future or Bridge to Nowhere? This webinar will be a discussion about the recent Tri-Agency rules on Health Reimbursement Arrangements.

Texas has passed one of the strongest new laws on drug transparency—HB 2536. To learn how this law may apply to drug manufacturers, pharmacy benefit managers, and health plans, please see our recent Health Law Scan blog post: New Texas Law Mandating Drug Price Transparency Considered Among Strongest in Nation.

Congratulations to our employee benefits and executive compensation practice for being awarded Law Firm of the Year by Chambers & Partners’ Chambers USA Awards 2019. This award recognizes our preeminence in the benefits practice area, including our outstanding work and excellence in client service. For more information, please see Morgan Lewis Wins Employee Benefits & Executive Compensation Law Firm of the Year Award from Chambers USA.

Congratulations to Steven P. Johnson on his election to the Morgan Lewis partnership in our employee benefits and executive compensation practice! Effective October 1, 2019, Steve, who is resident in Washington, DC, will join 29 other newly elected partners from 12 offices and nine practices. For information about all of the firm’s newly elected partners, please see Morgan Lewis Elects 30 New Partners.

Partner Matthew Hawes was quoted in a recent Law360 article about strategies employers can use to safeguard their retirement plans against cybersecurity risks. Matt discusses how the lack of sufficient protections against cybersecurity breaches can been seen as a violation of fiduciary duty. Read the full article, 4 Tips For Handling Retirement Plans’ Cybersecurity Risks.

Partner Andy Anderson was quoted in a recent article by the Society of Human Resource Management (SHRM) on the Health Reimbursement Arrangements and Other Account-Based Group Health Plans final rule issued by the US Departments of Health and Human Services, Labor, and Treasury. Andy discusses the new excepted-benefit health reimbursement arrangement. Read the full article, New Final Rule Lets Employees Use HRAs to Buy Health Insurance.