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Worst-Case Scenarios from the Files of an Employee Benefit Plan Litigator

By Patrick W. Begos

Your company decides to establish a new employee benefit plan. As in-house counsel, you, naturally, are asked to get involved. The regulatory, compliance and tax issues will unquestionably be daunting. Qualified or non-qualified? Safe harbor? Contributory? Top-heavy? Defined benefit or defined contribution? All of these questions, and more, must be answered before you can finalize your company's plan. And, unquestionably, you can circle your building with the advisers and consultants who will line up to help answer those questions.

But there are other questions that may not be so obvious in the early days of plan formation. Who will decide claims? What powers will they have? What procedures will they follow? Whoever has the primary responsibility for writing your plan document certainly will have some boilerplate to address at least some of these issues. It will be worthwhile for you to take a little time at the beginning to consider those boilerplates in more depth. The time you spend on them now could save you and your company a great deal of time, and money, down the road.

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