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Total Articles: 14

January 20, 2017; A Historical Day

This is another article in our series addressing the continued deterioration and downward spiral of multi-employer defined benefit pension funds and the resulting impact upon participants, unions and most importantly on employers.

Criminal Liability for Failure to Contribute to Multiemployer Benefit Fund?

The precarious financial status of some multiemployer benefit funds has led to criminal indictment against non-contributors. This troubling expansion of potential sanctions for failure to make required contributions to multiemployer benefit plans appears in a case from the U.S. District Court for the District of Massachusetts.

PBGC Issues Proposed Rule on Mergers and Transfers Between Multiemployer Plans

The Pension Benefit Guaranty Corporation (PBGC) recently released a proposed rule amending the agency’s regulations on mergers and transfers between multiemployer plans. The proposed rule would implement a section of the Multiemployer Pension Reform Act of 2014 (MPRA), which provides that the PBGC may offer assistance to multiemployer plans to facilitate plan mergers.

Crash Landing for Central States – What now for Multi-employer Pension Funds?

In the aftermath of the rejection of the Central States Southeast and Southwest Areas Pension Plan (“Central States”) application to reduce core benefits by Treasury Special Master Kenneth Feinberg, it is critical that contributing employers to multi-employer pension funds recognize the harsh reality that help to those funds will not be forthcoming from the government in at least the near term.

Private Equity Funds Found Liable For Multiemployer Pension Obligations of Portfolio Company

In a significant decision for both private equity funds and multiemployer pension plans, the U.S. District Court for the District of Massachusetts held last week in Sun Capital Partners III, L.P. v. New England Teamsters & Trucking Industry Pension Fund that a related group of private equity funds are responsible for pension withdrawal liability assessed against a bankrupt portfolio company owned by the funds.

Multiemployer Pension Plans Reduced Interest Rate Assumptions Dramatically Increase Withdrawal Liability

Many multiemployer pension plans are struggling financially today, and, according to the PBGC, about 10 percent of the 1,400 plans are expected to become insolvent within the next 10-15 years. These looming insolvencies were in large measure the motivation behind the 2014 law that now allows plans in "critical and declining" status to cut vested benefits.

The Continuing Downward Spiral of the Multi-Employer Pension Plan

We have been monitoring and reporting on several disquieting events which have occurred in the multi-employer pension plan world within the past few months.

Application by Central States Pension Fund to Reduce Core Benefits

Since the passage of the Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”) the financial well-being of employers contributing to multi-employer defined benefit pension plans has been tied to the funding of those plans, many of which have been underfunded for decades. The downward spiral has been exacerbated by several unalterable factors: an increase in retirees, a decrease in active participants whose contributions support the retirees and an increase in life expectancy.

Recent Seventh Circuit Decision Finds That Multiemployer Pension Withdrawal Liability Can Automatically Transfer to Asset Purchase

In a recent decision that has important implications for purchasers of assets that come with a multiemployer union pension plan, the U.S. Court of Appeals for the Seventh Circuit held in Tsareff v. ManWeb Services, Inc., 794 F.3d 841 (7th Cir. 2015) that an asset purchaser’s awareness of a seller’s potential withdrawal liability was enough to make the purchaser responsible for the withdrawal liability, even where the asset purchase agreement did not include the withdrawal liability as an assumed liability. The decision is important because it arguably expands the circumstances under which an asset purchaser can be deemed responsible for a seller’s pension withdrawal liability.

Asset Purchasers Face Increased Exposure for the Multiemployer Pension Debts of Sellers

Both buyers and sellers in asset sale transactions should be cognizant of the ongoing erosion of the common law rule that the purchaser is not responsible for the seller’s liabilities absent a contractual assumption of such liabilities, as evidenced by a recent Ninth Circuit case finding that the theory of successor liability may be used to hold an asset purchaser liable for the predecessor’s $2.2 million withdrawal liability obligation to a multiemployer pension plan. Federal courts originally applied successor liability in the context of federal labor law where the successor employer had notice of an unfair labor practice and continued, without interruption or substantial change, the seller’s business operations. Over the years, this “successor liability” rule has been expanded to cover various other statutory liabilities under labor and employment law.

Federal Agencies Issue Regulations Governing Benefit Reductions and Partitions for Underfunded Multiemployer Pension Plans

On June 17, 2015, the Internal Revenue Service (IRS) and the Pension Benefit Guaranty Corporation (PBGC) released several regulatory measures implementing the multiemployer pension plan amendments that were enacted in December, 2014.

Multiemployer Pension Reform

Employers and unions locked into failing multiemployer pension plans received an 11th-hour reprieve in late December when Congress passed legislation revising laws that had hobbled these plans for years. Titled the “Multiemployer Pension Reform Act of 2014,” the reforms give multiemployer trustees and the Pension Benefit Guaranty Corporation (PBGC) new tools to address plan underfunding, and seek to eliminate reasons employers abandon these plans prematurely.

FASB Enhances Disclosure Requirements for Employers Participating in Multiemployer Plans

To increase transparency, the Financial Accounting Standards Board (“FASB”) has imposed new disclosure requirements on nongovernmental employers participating in multiemployer plans in its recently issued Accounting Standards Update No. 2011-09, Compensation — Retirement Benefits — Multiemployer Plans (Subtopic 715-80): Disclosures About an Employer’s Participation in a Multiemployer Plan (the “Update”). Public entities must comply with these new disclosure requirements for fiscal years ending after Dec. 15, 2011; nonpublic entities must comply for fiscal years ending after Dec. 15, 2012. Though not required, the FASB is permitting early application of the disclosure requirements if employers are willing and able to provide the required information before the applicable effective date.

High Noon for Multiemployer Pension Plans.

Certain notice and funding provisions of the Pension Protection Act (PPA) became law January 1, 2008, and the first impact of these requirements is about to be felt. On or about March 30 most multiemployer pension plans will be sending status notices to employers and others. Many of these notices will contain bad news, although some will not. Here's what's going on in somewhat non-technical terms.
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