Mr. Cleary has extensive experience dealing with the Department of Labor on ERISA matters, including prohibited transaction exemptions and advisory opinions, as well as DOL audits and enforcement actions, and he frequently represents trustees, investment managers and other fiduciaries concerning their fiduciary responsibilities under ERISA. His representative matters include:
- On behalf of an investment adviser client, obtained one of the two seminal DOL advisory opinions authorizing the payment of incentive compensation under ERISA
- Teamed with ERISA litigators in obtaining a dismissal of all ERISA claims alleging fiduciary breach and unreasonable compensation against John Hancock Life Insurance Company in a case pending on appeal in the Third Circuit
- As a part of his substantial practice in the stable value area, assisted two money center banks in successfully winding down their stable value collective investment funds
- As special ERISA counsel, currently seeking to obtain a DOL prohibited transaction exemption that would enable, both retroactively and prospectively, a plan sponsor client to contribute notes issued by an affiliated entity to its defined benefit pension plan in satisfaction of its funding obligation to the plan
- Obtained the first DOL advisory opinion holding that Section 408(b)(8) of ERISA provides exemptive relief for self-dealing prohibited transactions under Section 406(b)(1)
- Assisted a major financial institution in restructuring, renegotiating and redocumenting its entire stable value book of business after the financial crisis
Mr. Cleary is a member of the Employee Benefits Committee of the Tax Section of the American Bar Association, a past co-chair of the Employee Benefits Committee of the Boston Bar Association and a former director of the New England Employee Benefits Council and of Catholic Memorial School.