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Bernard F. O'Hare

Partner
P: 212-336-2613
F: 212-336-2222

Overview

Brian O’Hare is a member of the American Bar Association, Section of Taxation, Committee on Employee Benefits, where he is past-chair of the Section 401(k) Subcommittee.  Further, he headed the task force on the ERISA section 404(c) participant-directed account regulations at the Association of the Bar of the City of New York, Committee on Employee Benefits.  He has published numerous articles in the employee benefits and executive compensation field and speaks frequently on such topics.

Mr. O’Hare has particular experience representing large pension funds in regulatory and fiduciary matters before the Internal Revenue Service and the United States Department of Labor.  He is also experienced in addressing compensation matters at both for-profit and tax-exempt entities and has provided extensive advice on plan investment vehicles, including commingled funds and venture capital.  In 2002, Mr. O’Hare was elected a Fellow of the American College of Employee Benefits Counsel.  Mr. O'Hare has received Martindale-Hubbell's highest "AV" rating and has been recognized as a leading lawyer in The Best Lawyers in America® in the area of Employee Benefits Law and named in Super Lawyers in the area of Employee Benefits/ERISA. Mr. O'Hare was named to the "Irish Legal 100" in 2013.

Representative Matters

Manufacturing and Financial Service Companies 
Advice regarding the impact of the Sarbanes-Oxley Act on various matters including the provision of split-dollar life insurance as an executive compensation vehicle.

Manufacturing Company
Designed a supplemental executive retirement program (or "SERP") as both a retention and compensation vehicle for Company's top-management including analysis of change of control and proxy reporting issues.

Advertising
Extensive design and implementation of employee and director stock option plans in preparation for an initial public offering, advice with respect to restructuring self-insured medical plan.

Technology Company  
Implementation of plan design changes to permit the transferability of options under a company's director and employee stock option plans including review of Section 16(b) changes and financial pricing issues. 

Pharmaceutical Company   
Advice with respect to revamping fiduciary delegation procedures, including delegation of Board authority and claims review; design and extensive work in the early retirement and severance area, in particular advice with respect to structuring programs under the Older Workers Benefit Protection Act.

International Corporations  
Review and preparation of an illustrative voluntary deferred compensation program for American officers of a Japanese corporation, with particular attention to accounting issues; due diligence review for Swiss corporation with respect to newly acquired U.S. subsidiary, including review of voluntary compliance issues.

Foundation  
Executive compensation advice including extensive structuring of a deferred compensation arrangement to protect CEO against future decreases in the legal limits of qualified plan benefits while remaining within the special Internal Revenue Code restrictions placed on non qualified deferred compensation provided by tax exempt entities.

Pension Funds  
Regular representation of several multi-billion dollar pension funds, including establishment of flexible benefit options for participating employers; review futures trading and commodities futures trading rules; negotiating investment management agreements, GIC contracts, venture capital/plan asset investments and overseas investments; drafting employment contracts and severance agreements.  Helped design and implement complex early retirement programs. 

Church Pension Funds 
Monitoring and revision to legislation on the national level impacting the operations of large multi-state denominational pension funds; similar projects undertaken at the state level; coordination of interests and participation in a national umbrella group of similar funds.

Pension and Benefits Funds 
Extensive project whereby a large non-collectively bargained multiple-employer welfare plan was restructured with particular attention to state insurance law and pending federal changes to health plans including attention to managed care issues; review plan design options to make a multi-billion dollar plus multiple-employer retirement program more flexible for individual employers, attention to HIPAA privacy, health non-discrimination issues and retiree medical issues.  Worked extensively on issues presented by withdrawing employers from a multiple employer welfare fund.

Venture Capital Fund 
Helped design a pharmaceutical venture capital fund to comply with ERISA plan asset rules to attract pension fund investors - intended capitalization of 500 million dollars.

Regulatory Rulings 
Obtained a precedent setting IRS private letter ruling allowing a multi-billion dollar multiple employer pension fund to expand its basis of activities with no negative tax consequences.  Also obtained several prohibited transaction exemptions for multi-billion dollar funds from the U.S. Department of Labor.

Arbitration 
Act as a sole arbitrator upon the designation of two major financial institutions with respect to a multi-million dollar matter involving the transfer of pension business responsibilities and the impact of daily plan valuations between two ongoing concerns.

Strategic Planning 
Advise a multi-billion dollar pension fund with respect to new benefit structures to be offered including attention to ERISA, Insurance Law and corporate organization concerns.

Litigation 
Advise several pension funds with respect to investment-related litigation; advise other funds with respect to interpleader and related actions.

Company Stock Fund 
Advise a publicly traded company with respect to the fiduciary and other regulatory issues pertaining to the establishment of a Section 401(k) company stock fund.