Michelle McCarthy

Michelle McCarthy advises clients of all types – from tax exempt organizations and 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 frequently advises on federal tax qualification and compliance matters relating to both the form and operation of the plan, benefits administration, fiduciary duties, plan design, policy development, federal, state and local tax withholding, reporting and remittance, Social Security coverage of members, FICA replacement plan requirements, the windfall elimination and governmental pension offset provisions, as well as tax compliance and maintaining tax-exempt status under the IRC, underlying Treasury Regulations, applicable IRS guidance, and relevant case law. Michelle frequently assists governmental plans in the development and drafting of internal policies and procedures, member notices and communications, statutory and regulatory amendments required in order to remain compliant with federal tax laws and regulations and the impact that proposed legislation will have on public pension systems and their members. Michelle has vast experience representing public pension plan clients on the pros and cons of self-correction under the IRS’ EPCRS, and has represented her governmental plan clients before the IRS in requests for determination letters, private letter rulings, and compliance statements under EPCRS.

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, Social Security Administration (SSA) 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 numerous California-based public pension systems on compliance with the new required minimum distribution rules under the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) and SECURE 2.0 Act, and corresponding changes under California state law, and assisted in the development of the systems’ internal policies and procedures to comply with the minimum distribution requirements under Section 401(a)(9) of the Internal Revenue Code (IRC), as amended by the SECURE Act and SECURE 2.0.

• Advised an association of governmental employers in the development and design of a benefit plan to provide health benefits to public-sector employees.

• Advised governmental plans on federal tax withholding and reporting obligations, Social Security coverage of members, FICA replacement plan requirements, the windfall elimination and governmental pension offset provisions.

• Assisted 3 governmental plans in the development and drafting of internal policies and procedures, member notices and communications, and statutory and regulatory amendments required to remain compliant with federal tax laws and regulations.

• Represented governmental plans before the IRS in requests for determination letter requests and compliance statements under EPCRS.

• Advised public pension system on updating its RMD policies and procedures and locating missing members to whom missed RMDs were owed. Also provided written memorandum on the pros and cons of participating in the VCP versus self-correction under EPCRS and represented the system before the IRS in a request for a compliance statement with a favorable result.

• Advised public pension systems 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.

• Advised large multinational private sector employer with over 200,000 U.S.-based employees on issues related to the administration, management and oversight of its defined contribution, defined benefit, health and welfare, vacation, and severance plans with the Employee Retirement and Income Security Act of 1974 (ERISA) and the IRC, represented the employer in the submission of a VCP application with the IRS and voluntary fiduciary correction program (VFCP) application with the DOL, assisted in the redesign and amendment of its defined contribution, health, vacation and severance plans, represented the employer in a matter before the DOL, provided fiduciary trainings, and assisted with the termination and use of excess assets held in a Voluntary Employee Benefits Association (VEBA) so as to avoid income and excise taxes.

• 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

Speaking Engagements

News

Podcasts

Community & Professional

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

National Conference on Public Employee Retirement Systems SECURE 2.0 Task Force

State Bar of California, Employee Benefits and Executive Compensation Subcommittee, Member and Former Chair

Los Angeles County Bar Association, Tax Section, Member and Former Chair

International Foundation of Employee Benefit Plans, Member

National Association of Public Pension Attorneys, Tax Section, Member

Women's Lawyers Association of Los Angeles, Member

Free Arts for Abused Children, Board Member

Honors & Recognitions

Included in The Best Lawyers in America^© for Employee Benefits (ERISA) Law, 2020-2023, 2025