ALI-ABA Course of Study Current Developments in Employment Law: The Obama Years July 23-25, 2009 Santa Fe, New Mexico
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1 649 ALI-ABA Course of Study Current Developments in Employment Law: The Obama Years July 23-25, 2009 Santa Fe, New Mexico Executive Compensation Litigation By John L. Utz Utz, Miller, Kuhn & Eickman, LLC Overland Park, Kansas 2009 John L. Utz. All Rights Reserved.
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3 651 EXECUTIVE COMPENSATION LITIGATION TABLE OF CONTENTS by John L. Utz Utz, Miller, Kuhn & Eickman, LLC (913) I. Benefit Distributions Spousal Rights... 1 Marital Property... 1 II. ERISA Issues... 3 ERISA Claims... 3 ERISA Preemption Breach of Employment Agreement Unwritten Policy and Practice of Paying Severance Covenant Not to Compete in SERP Complete Preemption Quantum Meruit Claim Severance Benefits Annuitized SERP Benefits, Recovery of Overpayment Change in Control Benefit, Oral Promise Concerning Comparable Position Provision Provision P Fiduciary Breach: Reduction in Qualified Retirement Plan Benefits III. Bankruptcy Bankruptcy of Employer Priority for Executive Compensation Sale of Assets as Change in Control Failure to Provide Notice of Termination, One-Year Limitation on Compensation Recovery of Deferred Compensation Where Distribution was Accelerated Compensation Enhancements, Breach of Corporate Fiduciary Duty Eliminating Retiree Benefits Top-Hat Plan Attempt to Reject Nonqualified Plan after Plan of Reorganization Confirmed Bankruptcy of Participant: Inclusion of Stock Options in Bankruptcy Estate IV. Taxation Employer s Tax Deduction: Underreporting of Income by Executive Employer s Tax Deduction: Reasonable Compensation v. Disguised Dividend Nonqualified Options Taxation of Executive Subject to Lock-up Agreement Taxation Where Shares Purchased with Third Party Margin Loans Taxation, Section 16(b) Potential Liability Incentive Stock Options i
4 652 Alternative Minimum Tax Where, Following Exercise, Stock is Subject to Insider Trading Restriction Section 83(b) Election, Alternative Minimum Tax V. Litigation and Procedural Issues Discovery Related Plans Top-Hat Plan, Administrative Committee s Concerns About SEC Demand Futility: Stock Option Backdating State Attorney General s Standing: New York Not-for-Profit-Corporation Law Shareholder Derivative Action: Corporation s Lack of Independence Concerning Whether to Prosecute Lawsuit Collateral Estoppel Standard of Review Employer s Unclean Hands Arbitration Attorneys Fees Prejudgment Interest Delegation of Claim Decision Declaratory Action: Jurisdiction Statute of Limitations Fraud or Concealment Exception, ERISA Fiduciary Claim Top-Hat Plan Benefit Claim Tolling 39 Complete Preemption Top-Hat Plan Quantum Meruit Claim: Severance Benefits Federal Diversity Jurisdiction: Stock Options, Amount in Controversy Attorney-Client Privilege: Top-Hat Plan Federal Court Abstention Where State Action Pending Employer Not Proper Defendant: Benefit Claim Claims and Appeals: Withholding Evidence Considered in Denying Claim Transfer: ERISA Fiduciary Claim Involving Allegations of Backdated Stock Options. 43 Remedies: Alleged ERISA Vesting Violation Under Deferred Compensation Plan Exhaustion of Remedies VI. Corporate Governance Waste/Fiduciary Breach Approval Process Board s Duties of Loyalty and Care, Waste, CEO s Duty of Loyalty Independence of Special Committee Board Entrenchment Fiduciary Breach Stock Option Backdating and Spring-Loaded Options Spring-Loaded Options Disclosure Concerning Option Backdating, Corporate Merger Option Backdating, Springloading, and Bullet Dodging Demand Futility, Failure to State Claim ii
5 653 Disclosure Concerning CEO s Financial Interest in Merger Incomplete Disclosure of Compensation to Board VII. Mergers and Acquisitions Change in Control VIII. Nonqualified Benefit Ambiguities Letter Agreement: Sufficiently Definite Unilateral Contracts/Consideration Oral Contract Statute of Frauds Parol Evidence Forfeiture Wrongdoing Voluntary Termination Competition Voluntary Deferrals: California Labor Code Voluntary Deferrals: New Jersey Wage and Hour Law Voluntary Deferrals: Breach of Contract Voluntary Deferrals: Settlement Voluntary Deferrals and Bonuses: Connecticut Wage Statutes Voluntary Deferrals and Bonuses: Massachusetts Wage Statute Releases Business Travel Accident Insurance: Death While Traveling Home Compensation Definition Counting Stock Option Gains Counting Retention Compensation Counting Payment for Noncompete Counting Severance Pay Social Security Offset/Standard of Review: Top Hat Plan Offset for Employer s Tax Liability California: Profit-based Incentives New York Wage Statute: Forfeiture for Voluntary or For Cause Termination Pennsylvania: Early Taxation Top-Hat Plan Definition Unfunded Status Release/Fiduciary Claims/Estoppel Misrepresentation/Fiduciary Breach/Statute of Limitations Misrepresentation/Fiduciary Breach/Estoppel Estoppel/Misrepresentation Retroactive Amendment, Adding Exhaustion of Remedies Requirement Early Retirement Eligibility, Termination With Consent Plan Termination, Estoppel Plan Amendment/Allegation of Fiduciary Breach Eligibility, Former Employees Offset for Debt Owed Employer Earnings: Net Losses Oral Promise: ERISA Fiduciary Claim, Equitable Relief iii
6 654 Estoppel Oral Promises, Qualified Defined Benefit Plan Benefit Illustration and Past Practice Legal Malpractice: State Court Filing for SERP Benefit Claim Restricted Stock: Employer Discouraging In-Service Tender IX. Securities Fraud Extraordinary Payments Under Sarbanes-Oxley Act X. Stock Options Contractual Waiver of Fiduciary Duty Lockup Agreement: Misrepresentation Misrepresentation Reasonable Reliance Time Limit for Exercise Time Limit for Exercise, Fiduciary Breach Stock Sale: Time Limit for Exercise Termination of Employment: Cancellation at Administrator s Discretion Preliminary Injunction During Pendency of Arbitration Waiver of Other Benefits Appraisal Right Termination for Cause: Good Faith Requirement Improper Delegation of Claim Decision Oral Grant of Options Determining Date of Employment Termination Change in Control Sale of Subsidiary Spinoff: Adjustment in Number of Options Exercise by Estate Mutual Departure Doctrine Meaning of Vested Prejudgment Interest Approval Process for Stock Options Measure of Damages for Breach of Option Agreement Wrongful Termination Preventing Stock Option Vesting Disability Determination: Good Faith Requirement Proxy Statement Disclosure Meaning of Retirement State Taxation of Nonresidents State Wage Payment Statutes Retaliatory Discharge: Attempt to Exercise Options Failure to Tender Payment with Exercise Notice Vesting: Acceleration Upon Termination, Share Price Trigger Release: Effect on Vested Stock Options Backdated Options Securities Fraud, Pleadings Inadequate Securities Fraud, Pleadings Adequate Securities Fraud, Company s Liability for Form 10-K Statements iv
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