David McFarlane is an ERISA partner in the firm's Corporate, Health Care, Tax, and Labor & Employment groups in Crowell & Moring’s Los Angeles office. David has more than 25 years of experience in the U.S. and Canada advising on all matters under the Employee Retirement Income Security Act (ERISA), the Internal Revenue Code and other applicable laws related to pensions, retirement, health and welfare plans, employee benefits, equity and deferred compensation plans, and other matters relating to executive compensation. David and his ERISA colleagues have an in-depth knowledge and experience in advising clients on ERISA plan asset investment and prohibited transaction rules, private equity investments, fund structuring, ERISA fiduciary protection, cybersecurity risks, national and international corporate transactions, regulatory filings, and bankruptcy reorganizations. David is also well known for his knowledge of ERISA, the Affordable Care Act, and private and public health plan matters including fiduciary audit and protection for corporate plan sponsors.
David and his team have developed a unique Fixed-Fee ERISA Fiduciary Protection Program for corporate plan sponsors of retirement, health, and other employee benefit plans to ensure compliance with ERISA, the Internal Revenue Code, the Affordable Care Act, and other laws in order to best protect plan sponsors and their Boards of Directors, officers, and other employees from personal liability under ERISA.
David has been active in leadership roles for a variety of public and private institutions and organizations including president of the Canadian American Bar Association, judge pro tem of the Superior Court of California, vice-chair of the board of directors at Barlow Respiratory Hospital, president of the LGBT Bar Association of Los Angeles, and president of the Western Pension & Benefit Council (Los Angeles).
Prior to joining Crowell & Moring, David was a former partner in the Canadian law firm Osler, Hoskin & Harcourt before joining Skadden Arps in Los Angeles for 13 years. David is a frequent speaker and writer on matters related to his practice as well as diversity in the practice of law. He was recently recognized in the Los Angeles Business Journal as one of the “Most Influential Minority Lawyers in Los Angeles.”
Affiliations
Admitted to practice: California; Ontario, Canada (inactive)
Professional Activities and Memberships
- Canadian American Bar Association – Past President
- Barlow Respiratory Hospital – Former Vice-Chair, Board of Directors
- LGBT Bar Association of Los Angeles– Past Co President
- UCLA School of Nursing – Former Advisory Board Member
- Western Pension & Benefits Council, Los Angeles – Past President
Highlights, News & Knowledge
Speeches & Presentations
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"COVID-19: Pull Down Your Mask, Deep Breath – Impact on Retirement Plans, Health Plans & Executive Compensation," Crowell & Moring's Managing Tax Audits and Appeals Seminar 2020
(October 9, 2020).
Presenter: David McFarlane.
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"What’s Next for Your Employees: Congress Responds with New Rules for Employment and Benefit Programs," Crowell & Moring Webinar
(April 2, 2020).
Presenters: Thomas P. Gies, David McFarlane, S. Starling Marshall, and Christine B. Hawes.
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"Trends in Litigation: Review and Analysis of Landmark Litigation Withdrawal Liability," 17th Annual Made in America: Taft Hartley Benefits Summit, Las Vegas, NV
(January 21, 2020).
Speaker: David McFarlane.
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"Fiduciary Liability in Healthcare," 17th Annual Made in America: Taft Hartley Benefits Summit, Las Vegas, NV
(January 20, 2020).
Speakers: David McFarlane and Samuel W. Krause.
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"Current Issues Regarding Taxation of Independent Contractors," Crowell & Moring's Managing Tax Audits and Appeals Seminar 2019, Washington, D.C.
(September 12, 2019).
Presenters: David McFarlane, Glenn D. Grant, and Samuel W. Krause.
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"Third Thursday--C&M’s June Labor & Employment Update: Supreme Court Watch 2019 – A Recap and a Look Forward," Crowell & Moring Webinar
(June 20, 2019).
Presenters: Thomas P. Gies, David McFarlane, Suzanne Rode, and Jillian Ambrose.
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"Avoiding Fringe Benefit Pitfalls: Tax Traps, De Minimis Rules, Correction Procedures, Fiduciary Risks," Strafford Webinar
(April 2, 2019).
Co-Presenter: David McFarlane.
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"2019 Economic Forecast, Plan Compliance & Litigation Update," BDO Orange County Office, Costa Mesa, CA
(January 23, 2019).
Presenter: David McFarlane.
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"2019 Retirement Plan Economic Forecast, Plan Compliance & Litigation Update," BDO USA, Costa Mesa, CA
(November 28, 2018).
Presenter: David McFarlane.
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"10 Awesome Golden ERISA Rules for Health Plans (and 179 Less Awesome Bronze Ones)," American Health Lawyers Association In-House Counsel Institute, Chicago, IL
(November 2, 2018).
Speaker: David McFarlane.
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"Running With Scissors and Other Prohibited, Bad and Silly Tax Practices to Avoid in the ERISA-World," 2018 Managing Tax Audits and Appeals Seminar, Washington, DC
(September 27, 2018).
Speaker: David McFarlane.
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"Bitcoin in Your 401(k)? Doesn't Matter, Cyber-Thieves Are Going to Hack and Drain it Anyway," 2018 Global TEC Forum, Austin, TX
(April 12, 2018).
Presenter: David McFarlane.
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"How Did THAT Happen? ERISA’s Sharpening Scrutiny on Health Care," 2017 California Society for Healthcare Attorneys (CSHA) Fall Seminar, Los Angeles, CA
(November 3, 2017).
Presenter: David McFarlane.
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"Global Mobility – Where I am, Why it Matters," Tax Executives Institute (TEI), Toronto, Canada
(October 23, 2017).
Presenter: David McFarlane.
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"Employee Benefits - Scratch the Tax - HSA's - Move Over 401(k)s," Crowell & Moring's Managing Tax Audits and Appeals Seminar 2017, Washington, D.C.
(October 5, 2017).
Presenter: David McFarlane.
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"Third Thursday--C&M's July Labor & Employment Update: Following the Supreme Court: A New Approach to Judicial Review of Government Agency Decisions?," Crowell & Moring Webinar
(July 20, 2017).
Presenters: Thomas P. Gies, David McFarlane, Daniel W. Wolff, Glenn D. Grant, and Jillian Ambrose.
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"Employee Retirement Income Security Act of 1974 – Claims, Trends & Compliance," Lexis Nexis Webinar
(July 19, 2017).
Presenter: David McFarlane.
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"HSAs, Archer MSAs and the New Challenges of Open State Competition for Health Plans," National Audience of BCBS Attendees, Orlando, FL
(May 9, 2017).
Speaker: David McFarlane.
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"ACA, Control Groups and Related Issues," ASPPA/WPBC Annual Conference, San Francisco, CA
(August 2015).
Speaker: David McFarlane.
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"Recent D.C. Trends and Litigation," Blue Cross/Blue Shield Western Operations Conference, San Diego, CA
(June 2015).
Speaker: David McFarlane.
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"Legal Privilege in International Business Matters," IACD (International Association of Defense Counsel) Annual Meeting, Whistler, B.C.
(July 2011).
Speaker: David McFarlane.
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"Employee Benefit and Compensation Issues in Acquiring or Selling a Privately Held Company," Practicing Law Institute, Beverly Hills, CA
(June 2009).
Speaker: David McFarlane.
Publications
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"North Carolina Enacts Association Health Plan Law," Crowell & Moring's Health Law Blog
(September 24, 2019).
Authors: David McFarlane and Alice Hall-Partyka.
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"Court Upholds Short-Term, Limited Duration Insurance Policy Rule," Crowell & Moring's Health Law Blog
(July 23, 2019).
Authors: David McFarlane & Alice Hall-Partyka.
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"The Naked Ceo – Personal Liability For Board Members And C-Suite Under Erisa," Crowell & Moring's Retail & Consumer Products Law Observer
(January 25, 2019).
Author: David McFarlane.
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"Corporate – $28 Trillion and Personal Liability: ERISA Roars Back," Crowell & Moring's Litigation Forecast 2019
(January 9, 2019).
Contributor: David McFarlane.
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"Taking the Pulse of New Association Health Plans," Crowell & Moring's Health Law Blog
(January 2, 2019).
Authors: David McFarlane, G. Meredith Parnell, and Michelle Chipetine.
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"Your Next Cybersecurity Breach Will Be Your 401(k)...Soon," Westlaw's Journal of Compensation and Benefits
(July/August 2018).
Authors: David McFarlane and Alice Hall-Partyka.
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"Workplace Harassment and ERISA to the Rescue," Bloomberg BNA Daily Labor Report
(March 23, 2018).
Authors: David McFarlane and Samuel W. Krause.
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"Labor & Employment – Repeals and Rollbacks are Likely," Crowell & Moring's Regulatory Forecast 2017
(May 2017).
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$33 Million Settlement Approved For Systematic and Improper “Bundling” of Chiropractic CPT Codes
(October 31, 2016).
Authors: Harsh P. Parikh and David McFarlane.
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"Pension Advisors and Prison Wardens – The Reality Show," Daily Journal
(April 2011).
Author: David McFarlane.
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"Justin Bieber and Hair Denial," Daily Journal
(March 2011).
Author: David McFarlane.
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"True Grit – The New Wild West of Employee Benefits," Daily Journal
(February 2011).
Author: David McFarlane.
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"Making Your 2011 Resolution List? Start the New Year Right by Considering the Changes to Your Pension and ERISA Plans," Daily Journal
(December 2010).
Author: David McFarlane.
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"Lady Gaga and Health Care Reform," San Francisco Daily Journal and Los Angeles Daily Journal
(October 18, 2010).
Author: David McFarlane.
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Pension Benefits Law in Ontario, Carswell Publishing, Scarborough, Ontario, Canada
(1996).
Co-Author: David McFarlane.
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Annotated Unemployment Insurance Act, Carswell Publishing, Scarborough, Ontario, Canada
(1992).
Co-Author: David McFarlane.
Client Alerts & Newsletters
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"Supreme Court Sides with State Regulation of PBMs in Boost to Independent Pharmacies,"
Health Care Alert
(December 16, 2020).
Contacts: David McFarlane, Todd D. Rosenberg, Samuel W. Krause, Barbara H. Ryland, Ian Logan
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"Payers, Providers, and Patients – Oh My!: Fiduciary Duties Under ERISA,"
Podcast: Payers, Providers, and Patients – Oh My!
(July 10, 2019).
Contacts: David McFarlane, Samuel W. Krause, Payal Nanavati, Joe Records
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"Court Unravels New Association Health Plan Rules,"
Health Care Alert
(April 2, 2019).
Contact: David McFarlane
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"The New Wave of ACA Waivers,"
Health Care Alert
(November 12, 2018).
Contact: David McFarlane
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"Running with Scissors – and Association Health Plans,"
Health Care Alert
(July 13, 2018).
Contacts: David McFarlane, Samuel W. Krause, Kimberley Johnson, Alice Hall-Partyka
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"Cryptocurrency In Small Bytes: Bitcoin in Your 401(k)? A Byte that May Bite,"
Blockchain Alert
(March 27, 2018).
Contacts: David McFarlane, Samuel W. Krause, Alice Hall-Partyka
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"Expansion of Health Insurance Coverage For Small Businesses and Self-Employed – New Rules for Association Health Plans,"
Health Care Alert
(January 11, 2018).
Contact: David McFarlane
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"A New Day In Executive Compensation – Proposed Elimination of IRC 409A and 162(m),"
Regulatory Alert
(November 3, 2017).
Contacts: David McFarlane, Samuel W. Krause
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"Trump Administration Expands Availability of Non-ACA Compliant Health Plans,"
Health Care Alert
(October 13, 2017).
Contacts: A. Xavier Baker, Alexis J. Gilman, David McFarlane
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"Regulatory Kindness – IRS/DOL/PBGC/FRTIB Provide Hurricane Relief,"
Health Care Alert
(September 27, 2017).
Contacts: David McFarlane, Samuel W. Krause
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"U.S. Supreme Court Favors Religious-Affiliated Hospital Retirement Plans,"
Health Care Alert
(June 7, 2017).
Contact: David McFarlane
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"U.S. Supreme Court to Decide How Religiously-Affiliated Entities Run Retirement Plans,"
Tax Alert
(December 12, 2016).
Contact: David McFarlane
Media Mentions
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Will Health Plan Costs Spur A New Wave Of ERISA Suits?
June 20, 2019 — Law360
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Bloomberg Law Q&A With David McFarlane: Genetic Testing Benefits Emerge From The Fringe
May 9, 2018 — Bloomberg BNA
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Employers Unprepared For 401(k) Plan Data Breaches
April 24, 2018 — Employee Benefit News
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Confronting Workplace Harassment
March 13, 2018 — Human Resource Executive
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Most Influential Minority Attorneys In Los Angeles
January 22, 2018 — Los Angeles Business Journal
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A New Way to Resolve Workplace Sexual Harassment
December 29, 2017 — InsideCounsel
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After Harassment, Consider Counseling Services Without Deductibles
December 27, 2017 — Society for Human Resource Management
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Health Hires: Crowell & Moring, Goodwin, Faegre
October 21, 2016 — Law360
Firm News & Announcements