Michelle McCarthy

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

• 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.

Publications

Blog Posts

Speaking Engagements

News

Podcasts

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 & Recognitions

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