Photo of Mary M. Potter

Mary M. Potter Senior Counsel

Areas of Practice

Industries

Bar Admissions

  • Texas, 1981

Education

  • St. Mary's University School of Law, J.D., with distinction,Harlan Society, 1981
  • University of Rochester, M.A.
  • Marietta College, B.A., cum laude

For more than 30 years, Mary Potter has advised clients on the full range of employee benefits matters – including counseling, transactional support, and drafting in connection with private and governmental qualified retirement plans, retirement plans of tax-exempt organizations, ESOPs, nonqualified plans and arrangements, qualified domestic relations orders, and opinion letters. She also counsels clients about the labor and bankruptcy law aspects of employee benefits, related federal and state tax issues of benefit plans, other state and federal regulatory issues, fiduciary issues, ERISA litigation, and other compensation, benefits, and ERISA matters. Her clients include taxable and non-taxable employers, governmental entities, electrical systems, financial institutions, construction and contracting companies, and hospital systems.

Experience

Mary Potter is highly regarded by clients and colleagues for her ability to provide practical advice on complicated matters related to employee benefits, including guidance on unusual circumstances.

Her experience includes the following:

Governmental Plan Design
Assisted a Texas governmental subdivision in the redesign of its existing qualified defined benefit plan, addition of a new defined contribution element to encourage employee retirement savings, and maintenance of qualified plan and 457 plan; analysis of Texas Constitutional constraints on plan amendments, and ongoing advice and assistance with plan enhancements for selected employees.

ESOP Formation and Subsequent Transactions
Served as principal company counsel in the formation of a new private company Employee Stock Ownership Plan, including establishing the legal basis for use of a control premium for stock acquisition from family owners over a period of years. Provided ongoing representation in connection with liquidity and distribution issues, other insider stock sales to ESOP, and ESOP administrative issues. Defended Department of Labor investigation of ESOP resulting in no changes. Counseled company in later S Corporation conversion, takeout of management shareholders, and design of incentive executive compensation arrangements complying with Code Section 409A. Assisted throughout the process with corporate governance issues in an S Corporation ESOP environment. Provided Code Section 409(p) anti-abuse studies, analyses, and planning.

409A and 457(f) Compliance for a Tax-Exempt Organization
Analyzed all aspects of inadvertently noncompliant nonqualified deferred compensation arrangement and retired director welfare benefits, including advice on income and employment tax reporting, withholding, penalty issues, and other obligations under Internal Revenue Code sections 409A, 457(f), and others.

Defense of Surplus Plan Asset Transaction
Defended corporate shareholders threatened with income and excise taxes as a result of IRS attack on a legitimate pension surplus transaction, including preparation of lengthy position paper refuting IRS legal theories and case law interpretations.

  • American Bar Association, Section of Taxation, Employee Benefits Committee; EEOC Issues/FMLA, Military and Other Leaves Subcommittee Vice-Chair (2008–2010); member, ESOP Subcommittee
  • National Center for Employee Ownership
  • Texas Association of Public Pension Attorneys

Community/Civic Activities

  • San Antonio Youth Literacy, Board Member
  • Martindale-Hubbell® AV® PreeminentTM Peer Review Rating
  • Named "San Antonio Best Lawyers Employee Benefits Lawyer of the Year," Best Lawyers®, 2011
  • Selected for inclusion in The Best Lawyers In America®, 1995-2015
  • Selected for inclusion in Best Lawyers' "Texas Best Lawyers" 2013
  • SA Scene, "San Antonio's Best Lawyers," 2007, 2009 and 2011, 2014