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Miriam (Dusty) M. Burke
Miriam (Dusty) M. Burke
Experience | Education | Recognition | Publications
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Biography
Dusty is a partner in the firm's Employee Benefits and Executive Compensation practice. Her work encompasses all facets of employee benefits and executive compensation for a broad base of clients, including public and private sector companies and for-profit and tax-exempt entities. Dusty focuses much of her practice on ERISA litigation, defending clients in class actions involving stock drop cases, cash balance plan litigation, breach of fiduciary duty cases, and benefit denial cases. She also represents clients in controversies with the Internal Revenue Service and the Department of Labor. Dusty also devotes a significant amount of her practice to designing executive compensation programs and monitoring those programs to comply with ERISA and the Internal Revenue Code. In addition, Dusty has extensive experience in the employee benefit and executive compensation aspects of corporate acquisitions, mergers, and divestitures.
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Representative Experience
ERISA Litigation
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- Represented a publicly traded client in a “stock drop” challenge by a class of current and former employees that the 401(k) plan fiduciaries breached a fiduciary duty by continuing to offer the client’s stock as an investment alternative in the plan when the stock dipped significantly in value
- Represented a large insurance company in a challenge by a class of current and former employees that the long-term disability policy underlying the plaintiffs’ LTD plans violated state and federal law
- Represented an employer in a challenge by a class of current and former employees that the employer violated the age discrimination and accrual provisions of ERISA by converting its traditional defined benefit plan to a cash balance plan
Executive Compensation
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- Structured and drafted executive compensation arrangement for large heath care system designed to comply with the tax treatment of section 457(f) of the Internal Revenue Code
- Designed and drafted a tandem nonqualified deferred compensation plan to maximize contributions to the nonqualified plan and the associated 401(k) plan in compliance with 409A and the contingent benefit rule under section 401(k) of the Internal Revenue Code
- Drafted and designed numerous executive employment agreements providing supplemental pension and severance benefits
Corporate Transactions
- Represented various clients with respect to the employee benefits issues in mergers and acquisitions, including pre-closing diligence, drafting and negotiating representations and warranties in the definitive agreement, and post-closing actions implementing plan mergers or terminations
- Represented clients in structuring transactions to take advantage of, or avoid (as desired), single employer treatment under the controlled group and affiliated service group rules of sections 414(b), 414(c), and 414(m) of the Internal Revenue Code
- Analyzed for various clients the COBRA implications of the buyer and seller in corporate acquisitions and divestitures
Design and Drafting of Employee Benefit Plans
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- Designed single-plan structure for comprehensive welfare benefits plan and multiple welfare benefits programs and drafted all plans, programs, and associated documents
- Designed and drafted numerous defined benefit plans (including cash balance plans) and defined contribution plans for large publicly traded clients
- Restated and merged multiple defined benefit plans and multiple defined contribution plans of large publicly traded client into single defined benefit plan and single defined contribution plan
ERISA and Internal Revenue Code Compliance
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- Created fiduciary structure for various clients for the administration of employee benefit plans designed to limit exposure to ERISA fiduciary liability
- Day-to-day counseling with clients regarding compliance with ERISA and Internal Revenue Code provisions
- Interfaced with IRS and DOL on behalf of several clients undergoing audits by those governmental agencies
Prior results do not guarantee a similar outcome.
Education and Professional Background
- The University of Texas School of Law, LL.B., 1968
- University of Colorado, B.S., 1965
- Admitted to practice: Texas, 1968; United States Supreme Court; Fifth Circuit Court of Appeals; U.S. District Court for the Southern District of Texas; U.S. District Court for the Northern District of Texas; U.S. Tax Court
Professional Recognition
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- The Best Lawyers in America® in ERISA Litigation, 2012
- The Best Lawyers in America® in employee benefits law, 2002 - 2012
- Legal 500 U.S. in employee benefits and executive compensation, 2011
Publications and Presentations
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- "Gaining Ground on Procedural Issues Once a Suit Is Filed: Winning Battles Over the Statute of Limitations, Removal, Preemption, Estoppel, and Standing," 4th National Advanced Forum on Defending and Managing ERISA Litigation, American Conference Institute, October 2011
- "The Uncertainty and Unpredictability of the Limitations Period For Claims For Benefits Under ERISA § 502(a)(1)(B)," Bloomberg Law Reports, June 2011 (co-author)
- “404(c) as a Defense in Stock Drop Litigation,” American Conference Institute 3rd National Advanced Forum on Defending and Managing ERISA Litigation Conference, April 13, 2011 (presenter)
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Full Biography
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2801 Via Fortuna
Suite 100
Austin, TX 78746-7568
Tel +1.512.542.8425
Fax +1.512.236.3411
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