Steven W. Day

Steve regularly advises clients on:

• General design and compliance issues for qualified retirement plans, non-qualified deferred compensation arrangements and health plans
• Fiduciary responsibilities for administering benefit plans and investing plan assets
• Employee benefits issues that arise in connection with mergers and acquisitions
• Executive compensation arrangements and related requirements under the securities laws
• Governmental and church retirement and health plans

Steve has been recognized by Chambers USA for Employee Benefits & Executive Compensation in Ohio for seven years, most recently in 2024 in Band 2. Clients interviewed by Chambers USA stated, "This is a very complicated area of the law, and Steven Day does a great job in simplifying it and making it easy for internal business partners to understand. Steve works the timelines very well, gets us good work product, and meets expectations every time. He is a great resource for us! He is a strong partner in non-qualified plans as well as transactional matters."

Steve is an active member of the American Bar Association. He is also a member of the Advisory Board of the American Benefits Council and the National Association of Public Pension Attorneys.

Steve serves as a director of the Cleveland Metropolitan Bar Foundation and is a member of the Cleveland Metropolitan Bar Association. Steve has served as Chair of its Volunteer Lawyers for the Arts Committee, through which he provides pro bono legal services to members of the local arts community and frequently presents to artists and students on legal issues affecting artists. Steve is a regular lecturer at the Cleveland Institute of Art and the Cleveland Institute of Music, where he teaches classes on business and professionalism in the arts and music industry.

Steve is on the Board of Directors of the Swedish American Chamber of Commerce in Ohio.

Honors & Recognitions

• Chambers USA, Employee Benefits & Executive Compensation, Band 2, Ohio (2016-2017, 2020-2024)
• The Best Lawyers in America^®, Employee Benefits (ERISA) Law, Tax Law (2020-2025)
• Ohio Super Lawyers, Ohio Rising Stars (2013-2017)

Education

J.D., magna cum laude, Case Western Reserve University School of Law, Order of the Coif, Executive Editor of Case Law Review, Law-Medicine Fellowship, 2007

M.A., Biological Psychology, University of Illinois at Urbana-Champaign, 2003

B.S., Psychology, University of Illinois at Urbana-Champaign, 1999

Experience

• Providing ongoing advice to two separate, but related state-run retirement plans regarding benefit plan matters, including concerning the pension and healthcare arrangements these plans maintain. Notable recent projects include (1) Advising the client on reviewing and negotiating a new services agreement with a large pharmacy benefit manager to provide pharmacy benefits to over 200,000 members covered under the retiree health plan; (2) Advising the client with respect to state law requirements for retiree health systems under the state’s new disclosure and transparency laws for health plan providers; (3) Advising the client with respect to a Request for Proposals and subsequent negotiations with third-party administrators for its retiree health plan as well as its pharmacy benefit management agreement.; and (4) Advising the client with respect to administrative and compliance questions related to its retirement pension plan, including questions regarding the application of the annual benefit limits under Section 415 of the Internal Revenue Code.
• Regularly advising a national leader in providing administrative services to pooled employer plans (“PEPs”), with respect to establishing and administering such plans and with respect to the merger of traditional 401(k) plans into PEPs.
• Regularly advising a hospital client on executive compensation and employee benefits matters. Recently, we advised the with respect to its internal review of employment and deferred compensation arrangements with members of the hospital’s senior executives.
• Regularly advising a health insurance company on legal issues that arise in the operation and administration of its employee benefits and executive compensation programs. Recently, Calfee advised the client with respect to separation agreements with executives who will be retiring at the end of 2023 and their entitlements under the company’s long-term and short-term incentive plans, non-qualified deferred compensation plans, and other arrangements. Calfee advised the client on questions arising from integrating benefit plans from companies it has recently acquired, and we are assisting with a multi-state assessment of state-level leave and benefits laws and advising on compliance thereunder.
• Regularly advising a large religious organization client with $125+ million in net assets on its day-to-day issues related to operating its various retirement and health plans. We advised the client on transferring employees from one client entity to another, which provides different benefit plans and the amendments necessary to effect the transition. We work with the client and several of its affiliated entities on day-to-day compliance issues for their benefit programs and advise the client on the impact on its group health plan of changes in law and regulations, including in connection with the COVID-19 crisis (and of the recent declaration of the end of the COVID-19 Public Health Emergency), as well as other state and federal laws or mandates.
• Advised a global manufacturing company and its Investment Committee on its fiduciary obligations with respect to monitoring and oversight of its employer stock fund, advised the company on its consideration of converting equity awards to cash-settled awards, and assisted with updating forms of various equity awards for the company. Calfee advised the company with respect to the treatment of various executive compensation arrangements through a bankruptcy process, including nonqualified deferred compensation plans and equity compensation awards. We continue to advise the client with respect to its post-bankruptcy compensation and benefits arrangements.
• Until early 2022, a national consulting and advisory firm was an S-Corporation wholly owned by an Employee Stock Ownership Plan (ESOP). Calfee advised the client on the formation of its ESOP in 2016 and served as outside counsel to the ESOP and the Board of Directors, the ESOP’s named fiduciary. In 2022, the client terminated its ESOP, underwent a corporate reorganization, and sold a substantial interest to an outside investor. Calfee provided legal counsel on the benefits issues involved in the transaction, including terminating the ESOP, advising the client on seeking shareholder approval of the transaction, negotiating the purchase agreement with the outside advisor and the ESOP’s trustee, and designing and drafting an executive compensation program for key employees after the transaction. We provide day-to-day representation for the client with respect to its executive compensation programs and general employee benefit plans.
• Providing broad representation as to employee benefit matters and executive compensation matters to this Fortune 1000 global manufacturing client. Calfee regularly advises the client on M&A activity and its impact on the company’s retirement plans as well as on executive compensation matters. We also regularly advise the client on amending its various pension and 401(k) plans in connection with the acquisition of new companies within the company’s controlled group or the sale of companies from its controlled group. This client, with 15,000+ employees worldwide, sponsors several defined benefit and defined contribution plans for both non-union and union employees. Notable projects during the last year have included providing advice on 401(k) plan and pension plan integration issues resulting from acquisition and divestiture activities.
• Advising a publicly traded, global manufacturing company with respect to (i) analysis of the company’s equity incentive plan under proxy voting guidelines from Institutional Shareholder Services; (ii) federal tax withholding requirements of supplemental wages earned under the company’s equity compensation plan.
• Serving as sole Employee Benefits counsel and regularly advises this 30,000-employee client with respect to various matters related to its multibillion-dollar 401(k) plan trust and pension plan trust, and executive benefit plans including plan design, plan integrations, plan administration, service provider contracts, investment management and investment advisor agreements and related plan and trust terms. We also advise the client (in its plan sponsor and plan fiduciary roles) with respect to changes in law, including evolving Internal Revenue Service, Department of Labor (DOL), and Securities Exchange Commission (SEC) regulations. The engagements under the plans often require reviewing and negotiating investment advisory and other services agreements with the financial institutions and advising on related plan and trust provisions.
• Regularly providing a U.S. division of a global manufacturing company and its affiliated companies with advice on the operational and compliance issues underlying their health and welfare benefit plans for 53,000 employees, retirees, and respective dependents. Recent highlights include: (1) Negotiate and renew a multi-billion-dollar services agreement with its pharmacy benefit manager for prescription drugs and health plan third-party administrator; (2) Draft and negotiate a series of service agreements with vendors providing various benefit programs, e.g., mental health counseling, pet care, fertility and parenting advice, employee mental health services, backup childcare, HRA COBRA administration, and wellness plan services/benefits; (3) Assist on plan participant communications and distribution strategies; (4) Draft an updated Summary Plan Description covering all welfare benefits under one document and incorporating certain insured benefits and documents; (5) Advise on the design, establishment, and implementation of a Voluntary Employees’ Beneficiary Association (VEBA) as a funding vehicle for $1 billion in present value of retiree medical benefits; (6) Advise on the impact on its group health plan of changes in federal and state law and regulations, including in connection with the COVID-19 pandemic, including administering relief for flexible spending accounts, assistance in administering Consolidated Omnibus Budget Reconciliation Act (COBRA) subsidies, extensions and relief periods provided for under the American Rescue Plan Act (ARPA), and advising the company through COVID-19 vaccination programs and policies as well as the impact of the recent declaration of the end of the COVID-19 Public Health Emergency; (7) Assist in Mental Health Parity and Addiction Equity Act compliance; (8) Provide strategic and compliance advice related to welfare and fringe benefits imputed income issues; (9) Assist in the administration and integration/disintegration of employee welfare benefits in response to the company’s various acquisitions and divestitures.
• Advising a public, multinational technology company with respect to (1) administration of distributions and tax withholding under the company’s nonqualified deferred compensation plans; (2) compliance with the DOL’s requirements for top hat plan filings; and (3) analysis of “compensation” for nonqualified deferred compensation plan administration and distribution purposes.
• Advising a publicly traded, multilevel marketing company with respect to (1) updating the eligibility and vesting provisions of the company’s non-qualified deferred compensation plan; and (2) advising the company on the treatment of short-term disability pay under the non-qualified deferred compensation plan.
• Assisting our global, publicly traded manufacturing company client with respect to certain employee benefit-related litigation and benefit claims matters: (1) Continuing assistance in negotiating plan service agreements to reduce exposure for the client and its plans; (2) Assistance in responding to participant pension benefit claims, such as ones associated with disputes concerning service crediting, benefit calculations, prior distributions, and predecessor plan provisions; (3) Assistance in responding to participants’ health plan benefit claims in the claims-review adjudication process, including through multiple administrative levels of appeal and responses to participants’ and their authorized representatives’ requests for plan documents; (4) Continued assistance in assessing plan fiduciary duties in relation to a large insurance company class action antitrust settlement; (5) Continued assistance in updating retirement and welfare plan provisions for evolving case law on claims adjudication provisions (such as with respect to equitable liens, anti-assignment provisions, claims with respect to non-network providers, breadth of claims subject to plan claims review procedures, and time and venue limits on bringing suit), and assistance with enhancing retirement plan governance procedures, as proactive measures.
• Advising a large energy and utilities company on entering into various investment arrangements for its multi-billion dollar defined benefit pension plan, including investments in hedge funds, private equity funds, collective investment trusts, and separate accounts.
• Representing a global food and beverage manufacturing company by reviewing and negotiating contracts with investment managers for individualized funds under its multi-billion dollar defined contribution plan.
• Advising several clients, including national banks, broker-dealers, and Registered Investment Advisor firms, on implementing the Department of Labor’s new fiduciary rule and related exemptions.
• Advising several publicly held clients on designing and obtaining shareholder approval of equity compensation plans.
• Advising a large governmental retirement program on negotiating arrangements with a pharmaceutical benefits program.
• Providing legal counsel on securities regulations affecting an SEC-registered investment adviser with $2+ billion in AUM providing asset management as a 3(21) and 3(38) investment fiduciary for 401k and corporate pension plans subject to ERISA and wealth management services for high-net-worth individuals. Calfee provides back-office support and expert counsel for the CCO and assists him in directing and implementing the firm’s compliance program for all supervised persons of the adviser, ensuring effective compliance with Rule 206(4)-7 of the Investment Advisers Act of 1940 (the “Compliance Rule”).

Professional & Community

• Cleveland Metropolitan Bar Foundation, Board Member
• American Bar Association, Member
• American Benefits Council, Member
• National Association of Public Pension Attorneys, Member
• Cleveland Metropolitan Bar Association, Chair of CMBA's Volunteer Lawyers for the Arts Committee and Member of Reach Out Committee for Non-Profits
• Swedish American Chamber of Commerce in Ohio, Board of Directors

Services

Retirement and Health Plans

• Tax-qualified defined benefit and defined contribution plans
• Medical plans, Section 125 "cafeteria" plans, wrap welfare plans
• Compliance with Patient Protection and Affordable Care Act, HIPAA and COBRA
• Governmental retirement and health plans

Executive Compensation

• Equity and phantom equity compensation plans for public and private companies
• Annual bonus and long-term cash incentive arrangements for public, private, and nonprofit organizations
• Employment, severance, change-in-control and sale bonus agreements
• Non-qualified deferred compensation plans
• Corporate governance and shareholder disclosure requirements under federal securities laws, stock exchange rules, and shareholder guidelines

Investment Management and Fiduciary Responsibilities

• Plan investments in hedge funds, private equity funds, collective investment trusts, separate accounts and pooled arrangements
• Service agreements with outside fiduciary advisors
• Compliance with Department of Labor’s new fiduciary rule and related exemptions
• Fiduciary structure and governance for plan sponsors
• Investment policy statements