Pension funds represent a significant source of capital for private fund managers, but if a fund is deemed a “plan assets fund,” ERISA’s strict regulatory regime applies. Understanding how ERISA works, as well as the exceptions available to those who do not want to be subject to ERISA as a manager of “plan assets,” is crucial for managers. At a recent New York City Bar event, ERISA practitioners from Simpson Thacher & Bartlett LLP; Proskauer Rose LLP; Skadden, Arps, Slate, Meagher & Flom LLP; and Wachtell, Lipton, Rosen & Katz discussed these issues and other ERISA-related developments applicable to organizing and operating private equity and hedge funds. This article, the second in a two-part series, addresses drafting fund documents, ERISA-related liability, controlled groups and common control concepts as applied to private equity funds, and implications of the Sun Capital
case. The first article
in the series summarized insights from panelists on identifying benefit plan investors and exemptions available to fund managers under ERISA. See also “Happily Ever After? – Investment Funds that Live with ERISA, For Better and For Worse (Part Five of Five)
,” Hedge Fund Law Report, Vol. 7, No. 37 (Oct. 2, 2014); “What Should Hedge Fund Managers Expect When ERISA Plans Conduct Due Diligence on and Negotiate for Investments in Their Funds?
,” Hedge Fund Law Report, Vol. 6, No. 25 (Jun. 20, 2013).