Richard H. Fay

Richard H. Fay, who died in 1989 at age 46, was active at the frontlines of the legislative development of the Employee Retirement Income Security Act of 1974 (“ERISA”). Richard was inducted in 2000 as an In Memoriam Fellow of the American College of Employee Benefits Counsel (the “College”).

Richard graduated in 1960 with an economics major from Babson Institute (name changed in 1969 to Babson College) in Wellesley, MA and earned his law degree in 1964 from the University of Maine School of Law in Portland, ME. Prior to going to Washington, Richard was Assistant Dean and lecturer at the University of Maine Law School.

Moving to Washington, DC in the mid-1960s, he held a number of jobs, including work on the staff of the U.S. House Education and Labor Committee and in the offices of then-Rep. William D. Hathaway (D-Maine). He served as legislative assistant for Senator Edmund S. Muskie (D-Maine) from March 29 to December 1, 1971. As legislative assistant to Sen. Gaylord A. Nelson (D-Wis) who had been chair of the Senate Finance Committee's Subcommittee on Private Pension Plans, he participated in and contributed to the legislative development of ERISA. Richard gained invaluable knowledge of the legislative story behind ERISA as well as in depth knowledge of the details of the law.

After ERISA was signed into law, Reed Smith Shaw & McClay LLP (name changed to Reed Smith LLP in 2000) hired Richard in 1975 to work in the firm’s Pittsburgh office. Richard became a partner and later transferred to the DC office. He practiced in the employee benefits and pension area there until his death.

After enactment of ERISA, Congress monitored the effects of the new law and considered whether adjustments and improvements were needed. Richard testified before Congressional subcommittees many times over his career. For example, on February 2 and 3, 1976, Richard appeared as a member of the Employee Benefits Division of the American Bar Association Section of Taxation in Joint Hearings before the Subcommittees on Private Pension Plans and Financial Markets of the U.S. Senate Committee on Finance and Select Committee on Small Business. He helped describe practical problems and expenses faced by small businesses dealing with new requirements and the developing understanding of the law. For example, plan sponsors had to draft retirement plan documents to comply with the new law, but then repeatedly revise those plans after “piecemeal” issuance of guidance. New annual plan reporting on “hours of service” referred to “regulations [that were] a subject of controversy” such that “highly competent practitioners [had] trouble with them.” His testimony brought the Senators a vivid picture of the challenges of compliance by plans with the new law.

His involvement in the forefront of the developing new law continued in other forms. During 1978 to 1982, he served as an Employer Representative to the Advisory Committee of the Pension Benefit Guaranty Corporation (“PBGC”), which had been authorized by ERISA. Supported by the business community, his nomination was recommended by Ian Lanoff, Administrator of the Pension and Welfare Benefit Program in the Department of Labor and by Senator Nelson. In 1986, he chaired the Employee Benefits Council of the U.S. Chamber of Commerce. He also acted as a consultant to the U.S. Senate Select Committee on Small Business. One College Fellow recalled that Richard once explained why he was so involved with benefits legislation by saying that his definition of “hell” was for there to be legislative activity going on and he was not a part of it.

A member of the American Bar Association Section of Taxation, Committee on Pension, Welfare and Related Matters, and Committee on Employee Benefits, he generously shared his “at the table” experience and expertise as a lecturer and author. Richard spoke extensively throughout the country at conferences on employee benefit plans, including those conducted by the American Law Institute-American Bar Association Committee on Continuing Professional Education. He authored the chapter "Fiduciary Responsibility" of the book entitled “A Practical Guide to the New Pension Reform Legislation” (S. Glasser, ed. 1975) and a chapter on employee benefit plans of a book entitled “Tax Reform Act of 1976.” Richard also served as a member of the Advisory Board on Employee Benefit Plans of the Bureau of National Affairs (the Bureau of National Affairs was acquired by Bloomberg, L.P. in 2011 and later known as Bloomberg Industry Group).

A bright and energetic lawyer, Richard’s impressive contributions to the scholarship and understanding of ERISA were greatly appreciated by the employee benefits community. A Richard H. Fay Memorial Scholarship Fund was established at University of Maine School of Law. See https://www.mainelawcommunity.org/s/184/16/interior.aspx?sid=184&gid=1&pgid=989

Photo Source: The Decade Book, American College of Employee Benefits Counsel 2000-2010