Mark D. Wincek is the leader of the Employee Benefits Practice Group of Kilpatrick Townsend. His practice concentrates on qualified plans, fiduciary matters and executive compensation, and it encompasses counseling, transactions and controversies.
Mr. Wincek is the author of the chapter on “SERPs and Excess Plans” in the BNA Books Section 409A Handbook, and his list of professional publications includes dozens of articles on compensation and benefits issues. In addition, Mr. Wincek is a former Adjunct Professor of Law at Georgetown University Law Center, a Charter Fellow of the American College of Employee Benefits Counsel, a member of the ECFC Flex Advisory Council, and a member of the Tax Section of the American Bar Association, where he served as Chairman of the Statutory Welfare Benefits Subcommittee (1986-1990).
From 1976 to 1981, Mr. Wincek was on the staff of the U.S. House Ways and Means Committee, serving as Senior Subcommittee Counsel to the Ways and Means Oversight Subcommittee in 1980 and 1981. While on the Hill, Mr. Wincek participated in the initial drafting and enactment of Code section 125, the Code provisions on dependent care assistance, as well as provisions that still govern health and welfare plan nondiscrimination.
Mr. Wincek has been listed since 2005 in Chambers USA: America’s Leading Business Lawyers for Employee Benefits & Executive Compensation Law, as a “Leading Individual (Employee Benefits)” and as a member of a highly ranked Washington benefits practice. He also has been listed in The Best Lawyers in America for Employee Benefits Law since 2005, and he is ranked as a “leading expert” in the Legal 500 (Employee Benefits and Executive Compensation). He has been repeatedly listed as a Corporate Counsel “Top Lawyer” and a Washington “Super Lawyer,” and in 2012 and 2013 was named to Super Lawyer’s list of the top 100 Washington attorneys (without regard to specialty). Based on an independent survey of Fortune 500 companies, Mr. Wincek was named to BTI’s Client Service All-Star Team.
Defined Benefit Pension Plans
Mr. Wincek has more than 30 years of experience assisting large companies with their defined benefit pension plans, dealing with a broad array of complex issues and a wide variety of plans. For instance, he was a founding member of the Cash Balance Practitioners Group, a group that helped achieve more workable rules for cash balance plans (including the lump-sum safe harbor rules of IRS Notice 96-8). In addition, he has had exceptional results in IRS and DOL corrections matters, and in assisting large clients selected by the IRS for its intensive Employee Plans Team Audits.
Benefits and Compensation in Transactions
Kilpatrick Townsend’s Benefits and Compensation Team is a destination practice that is selected to handle benefits and compensation matters in major transactions, even when the firm is not deal counsel. Significant transactions of this sort include assisting ING Direct in its acquisition by Capital One, assisting Frontier Communications with its size tripling acquisition of territories from Verizon, and assisting PepsiCo with its acquisition of anchor bottlers Pepsi Bottling Group and Pepsi America.
Mr. Wincek has worked with dozens of major companies to refine their ERISA fiduciary governance to significantly reduce risk to the company and the fiduciaries. Using a range of strategies, structures and methods, Mr. Wincek has found it is possible to maximize risk reduction within each company’s unique culture.
Representation of Fiduciaries
In a transaction of historic size and significance, he has led the Kilpatrick EB team that has served as independent counsel to a fiduciary committee that is charged with retaining an independent fiduciary, negotiating the terms of engagement and supervising the independent fiduciary’s work. Mr. Wincek also has served as counsel to a special fiduciary committee set up to manage the investment of ERISA plan assets in company stock. His role included assisting the fiduciary with establishing its governance, retention of an independent fiduciary and ongoing procedural prudence. Mr. Wincek has advised fiduciaries in connection with a company’s contribution of employer real property to satisfy its funding obligations under its defined benefit pension plan.
Mr. Wincek has served as special benefits counsel in major class-action ERISA litigation, including cases alleging cash balance age discrimination, improper retiree health cutbacks, and fiduciary breach in the offering of employer stock. In addition, Mr. Wincek has served as an expert witness for compensation and benefits issues in both judicial and arbitration proceedings.
Representation of Clients Before Agencies
Mr. Wincek began his legal career on the staff of the House Ways and Means Committee (1976-1981). This background in policy formation has translated well into representation of clients on important matters before agencies such as the Treasury Department, IRS and Department of Labor, and before the Congress itself. For example, Mr. Wincek helped clients obtain relief related to important issues on defined benefit plan funding and nondiscrimination testing. In addition, Mr. Wincek participated in the development of the original regulations for Section 162(m)’s million dollar cap on non-performance compensation, and led the effort (which culminated in the “90-law-firm letter”) that successfully sought key transition relief when the IRS adopted an adverse position on the impact of retirement and involuntary termination under 162(m). Mr. Wincek also played a lead role in convincing the IRS to provide the critical one-year delay in the Section 409A compliance deadline.
Expatriate Retirement Benefits
The combination of Sections 409A and 457A have put obstacles and dangerous traps in the path to rational retirement and deferred compensation benefits for U.S. persons working overseas. Mr. Wincek has assisted a number of major companies with successfully navigating these challenges.
PepsiCo, Starwood Hotels, YUM Brands, AXA Equitable Life Insurance, Frontier Communications, Oracle, Charles Schwab, ConAgra Foods, Dun & Bradstreet, American Express, ING Direct, Weyerhaeuser, Office Depot, Equifax
Professional & Community Activities
BTI Client Service All-Star Team
American Bar Association, Tax Section, Member and Chairman of the Statutory Welfare Benefits Subcommittee (1986 and 1990)
American College of Employee Benefits Counsel, Charter Fellow
Benefits Law Journal, Editorial Advisory Board (1988-present)
ECFC Flex Advisory Council, Member
Georgetown University Law Center, Former Adjunct Professor of Law, Tax Aspects of Welfare Benefits Plans