Overview

Michelle McCarthy advises clients of all types – from governmental plans to Fortune 100 companies – regarding every facet of employee benefits law, including the design, structure, implementation, regulatory compliance and administration of retirement, health and welfare benefit plans. With more than 20 years of legal experience specializing in employee benefits and taxation, Michelle advises clients from both the private and public sectors and has served as trustee-appointed counsel to some of the largest and highest-profile pension, health and welfare funds in the nation.

Michelle has vast experience advising plan sponsors in the private sector with respect to the design, implementation and administration of their retirement, health and welfare benefit plans. Michelle’s experience in the retirement plan space includes working with defined contribution, defined benefit and hybrid plans. She also counsels clients on all aspects of health and welfare plans, working with her clients to ensure that their health and welfare plans comply with the complicated and ever-changing requirements under the Internal Revenue Code (IRC), Employee Retirement Income Security Act of 1974 (ERISA), the Affordable Care Act (ACA), the Consolidated Omnibus Budget Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA), the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), the Genetic Information Nondiscrimination Act (GINA) as well as other applicable federal and state law health plan mandates.

Michelle frequently advises plan sponsors and administrators on issues pertaining to plan governance, administration and compliance, has represented numerous of her clients in matters before the Internal Revenue Service (IRS) (including IRS audits and examinations) and has helped clients to obtain determination letters, private letter rulings, closing agreements and compliance statements with respect to corrective filings under the Employee Plans Compliance Resolution System (EPCRS) Voluntary Corrective Program (VCP). Michelle also has represented numerous clients in matters before the Department of Labor (DOL) and Pension Benefit Guarantee Corporation (PGBC) (including audits, examinations and corrective programs) and regularly advises on data privacy and cybersecurity issues relevant to retirement, health and welfare plans.

Specific to governmental plans, Michelle advises on tax and fiduciary issues, plan design, pension and health benefits administration, policy development, as well as tax compliance and maintaining tax-exempt status under the IRC, underlying Treasury Regulations and applicable state law. She frequently advises governmental plan administrators and their Boards of Trustees on issues pertaining to plan governance, administration and compliance and represents her governmental plan clients in matters involving the IRS (including plan audits, private letter ruling requests and compliance statement applications). In addition, Michelle represents her governmental plan clients in collection and enforcement actions before state taxing authorities and assists clients in the prosecution and defense of state tax appeals.

Michelle also has had a strong focus on benefits issues arising for Taft-Hartley multiemployer plans throughout her career, serving as management-appointed fund counsel to numerous multiemployer plans and advising boards of trustees on multiemployer plan governance, administration and compliance issues. Michelle has represented numerous of her multiemployer plan clients in matters before the IRS, DOL and PBGC, including audits and examinations as well as voluntary compliance programs. In addition, Michelle advises contributing employers regarding their participation in multiemployer health and pension plans and provides corporate transaction support on multiemployer plan issues, including potential withdrawal liability.

In addition to the numerous publications she has authored, Michelle frequently speaks on employee benefits and tax compliance issues at conferences sponsored by the International Foundation of Employee Benefit Plans, the American Bar Association, the National Association of Public Pension Attorneys, the State Association of County Retirement Systems, the California Association of Public Retirement Systems, the Los Angeles County Bar Association, the Beverly Hills Bar Association, the California Society of Certified Public Accountants and Lorman, among others.

Experience

Experience

  • Advised Boards for largest, highest-profile U.S. media and entertainment multiemployer pension and health plans on fiduciary and governance issues, including conducted new fiduciary trainings, as well as drafted and revised Boards’ codes of fiduciary conduct and plans’ internal fiduciary, governance and administrative policies and procedures.
  • Served as lead counsel in confidential ERISA-based DOL investigation of large multiemployer plan involving fiduciary breaches, Voluntary Employee Benefits Association (VEBA) registrations and propriety of investments.
  • Served as lead counsel in the representation of two large multiemployer funds in connection with a major DOL investigation that involved analysis of the plan sponsor’s governance activities, the propriety of payments made to beneficiaries under the plan, the retention of executive staff, investment managers, record keepers and other vendors, as well as the appropriateness of fees charged by those entities.
  • Served as lead counsel in the representation of a large multiemployer health and welfare fund in connection with a DOL investigation of allegations related to plan governance. This matter involved questions of plan registration protocols and ensuing financial responsibility of plan fiduciaries.
  • Served as lead counsel in the representation of a large multiemployer health and welfare fund in connection with a DOL investigation concerning allegations of fiduciary breaches related to COVID-19 expense reimbursements and plan’s alleged failure to comply with the MHPAEA.
  • Represented the largest and highest-profile U.S. media and entertainment multiemployer health fund in merger negotiations with another high-profile multiemployer health fund. Prepared merger documents, resulting multiemployer health plan document and summary plan description, participant communications regarding merger and new health plan policies and procedures.  Assisted plan staff with compliance issues arising from health plan merger.
  • Represented multiemployer health plan in negotiations with the Centers for Medicare & Medicaid Services, related to plan’s interpretation of Medicare Secondary Payer Rules.
  • Prepared Non-Quantitative Treatment Limitation Analyses report for large multiemployer health plan.
  • Represented an employer association in the maritime industry, in the negotiation, drafting, implementation and amendment of a multiemployer paid sick leave plan, benefiting over 30,000 union members up and down the coast. Preparation of the tax exemption application for the associated VEBA.
  • Represented a multiemployer plan trust in an ERISA litigation regarding a disability claim denial.
  • Represented an institutional trustee with respect to ongoing fiduciary matters and legal compliance requirements, including assisting the trustee in the review of valuation reports, providing counsel regarding the conduct of “pass-through” votes on major corporate transactions and representing trustee in IRS and DOL investigation.

Insights

Publications

  • 09.25.2023 | Nossaman eAlert
  • Considerations for Employers and Employer Plan Sponsors Related to Potential Changes in the Effect of Roe v. Wade
    05.06.2022 | LawFlash
  • A Survival Guide to DOL Group Health Plan Mental Health Parity Audits
    10.22.2021 | LawFlash
  • IRS FAQs: A Potential Shield for Taxpayers—Not a Sword for the Service
    10.20.2021 | LawFlash
  • Relaxed IRS Self-Correction Rules a Boon for Plan Sponsors—and an Opportunity to Correct Failures Now, Practical Guidance
    08.24.2021 | LawFlash
  • Relaxed IRS Self-Correction Rules a Boon for Plan Sponsors—and an Opportunity to Correct Failures Now
    07.28.2021 | LawFlash
  • Employers May Continue to Defer Payroll Taxes Even After Paycheck Protection Loan Forgiveness
    06.10.2020 | LawFlash
  • COVID-19 Measures: 100 Payroll Tax and Fringe Benefits Questions for the IRS
    04.17.2020 | LawFlash
  • Insight: 100 Payroll Tax and Fringe Benefit Questions for the IRS on COVID-19 Measures
    04.17.2020 | Bloomberg Law
  • COVID-19: LA City Council Approves Ordinances on Sick Leave and Retail and Delivery Workers 
    03.21.2020 | LawFlash
  • HIPAA Privacy Rule Still Applies for Employers Amid 2019 Novel Coronavirus Outbreak
    02.28.2020 | LawFlash

Speaking Engagements

  • Nossaman Webinar
    11.16.2023
  • Exempt Organizations & Governmental Plans Subcommittee Update
    ABA Virtual Fall 2023 Tax Conference
    10.19.2023
  • The MOVEit Hack: Lessons Learned and Compliance Refresher from the Biggest Hack of 2023
    California Association of Public Retirement Systems Attorney’s Roundtable
    10.17.2023
  • Nossaman's 2023 Pensions, Benefits & Investments Fiduciaries' Forum
    10.05.2023 and 10.30.2023
  • Required Minimum Distribution Rules Applicable under the Internal Revenue Code and California Law
    California Association of Public Retirement Systems Attorney’s Roundtable
    09.08.2023
  • National Association of Public Pension Attorneys’ 2023 Legal Education Conference
    06.27.2023 – 06.30.2023
  • Required Minimum Distribution (RMD) Rules Applicable under the Internal Revenue Code (IRS) and County Employees Retirement Law (CERL)
    State Association of County Retirement Systems Spring Conference
    05.10.2023
  • Top of Mind Benefits Issues for Employers
    Technology Industry Employers Roundtable
    05.18 - 05.20.2022
  • Attorney Misconduct Case Studies
    International Foundation of Employee Benefit Plans Annual Conference 2021
    10.19.2021
  • Top of Mind Benefits Issues for Employers
    Technology Industry Employers Roundtable
    05.19.2021
  • National ERISA Litigation Trends Against Employers
    ERISA Litigation Virtual Roundtable: For Plan Sponsors
    10.20.2020
  • Responding to the 2019 Novel Coronavirus: Top-of-Mind Employee Benefits Questions for Employers
    03.23.2020
  • Hot Topics in Employee Benefits: What We're Seeing
    03.19.2020
  • Responding to the 2019 Novel Coronavirus: Top-of-Mind Questions for Employers
    Labor and Employment Employer Roundtable
    03.12.2020
  • Employee Benefits 2020 – Hot Topics and Trends
    Employee Benefits Employer Roundtable
    11.21.2019
  • International Foundation of Employee Benefit Plans – Health Plan Mergers
    11.11.2019

News

Organizations

Community & Professional

American Bar Association, Exempt Organizations and Governmental Entities Subcommittee, Vice-Chair

State Bar of California, Compensation and Benefits Committee, Former Chair

International Foundation of Employee Benefit Plans, Member

National Association of Public Pension Attorneys, Member

Women's Lawyers Association of Los Angeles, Member

Free Arts for Abused Children, Board Member

Honors

Honors & Recognitions

Recognized in Best Lawyers in America, Employee Benefits (ERISA) Law, Los Angeles, 2020-2023

Education

Admissions

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