ERISA Successor and Affiliate Liability in Asset Sales and Distressed Benefit Plans

Mitigating Controlled Group and Successor Liability for Affiliated Companies, M&As and Corporate Reorganizations

Recording of a 90-minute CLE webinar with Q&A


Conducted on Tuesday, May 2, 2017
Recorded event now available


This CLE webinar will provide ERISA counsel with a review of controlled group and successor liability theories by which an entity can be held liable for unpaid or underfunded pension liabilities of another entity. The panel will discuss case law and regulatory developments, and offer best practices to avoid affiliate or successor liability.

Description

The PBGC and multi-employer pension plans are increasingly seeking solvent entities to satisfy distressed pension claims. A significant amount of litigation by multi-employer plans and the PBGC seek to impose controlled group liability on affiliated companies.

The Ninth Circuit in Resilient Floor Covering Pension Trust Fund Board of Trustees v. Michael’s Floor Covering and the Seventh Circuit in Tsareff v. Manweb Services held that an asset purchaser could be liable as a “successor” for the withdrawal liability of the seller of assets. In Dec. 2016, a district court rejected the PBGC’s attempts to expand the types of entities liable for termination liabilities. While the ruling was favorable to employers, the agency is clearly willing to advance new theories of liability to expand liability.

Successor liability and alter ego are similar means of targeting deep pockets to satisfy benefit plan liabilities in the context of M&A asset sales. In such cases, purchasers can find themselves liable for sellers’ withdrawal liability and delinquent contributions to their multi-employer pension and welfare plans.

In addition, successor liability cases are not just limited to traditional defined benefit and multiemployer plans, as similar claims may arise in the context of unfunded executive retirement plans and retiree medical arrangements.

Listen as our experienced panel of ERISA attorneys guides you through the controlled group and successor liability rules for affiliate entity liability for unfunded or underfunded benefit plans.

Outline

  1. Controlled group liability
    1. Unfunded pension liability and PBGC claims
    2. Multi-employer pension plan withdrawal liability
    3. Identifying controlled group members
    4. Defending liability assessments against alleged controlled group members
    5. Analyzing potential liability of controlled group
    6. Private equity fund liability for plan liabilities of portfolio companies
  2. Successor liability
    1. Common law standards for successor liability
    2. Expanded standards of successor liability under ERISA
    3. Corporate spin-offs and pension liabilities
  3. Alter ego liability
  4. Evade or avoid liability
  5. Liability of foreign parents for pension liabilities of U.S. subsidiaries
  6. Successor liability beyond Qualified Plans
  7. Transaction Considerations – how to diligence and structure the deal

Benefits

The panel will review these and other key issues:

  • How has controlled group liability been sought by multi-employer plans and the PBGC in the current economic climate?
  • What steps can buyers in asset purchase deals take to minimize successor liability for the seller’s plan liabilities?
  • What are some options for avoiding or minimizing withdrawal liability in corporate transactions?

Faculty

Robert M. Cipolla, Senior Counsel
McGuireWoods, Richmond, Va.

Mr. Cipolla assists a wide variety of clients including public, private, tax-exempt and governmental entities on qualified retirement plans, health and welfare plans, executive compensation, and other related benefit matters. He regularly provides advice on the employee benefit aspects of M&As and helps clients assimilate those plans and workforces following such transactions. Mr. Cipolla regularly speaks at employee benefit programs, presentations and conferences.

Taylor Wedge French, Partner
McGuireWoods, Charlotte, N.C.

Mr. French’s employee benefits practice covers a wide-range of traditional executive compensation and employee benefits matters along with a variety of inter-disciplinary practice areas and industries that are affected by executive compensation and employee benefits laws. He advises and negotiates executive compensation and employee benefits matters relating to private equity, M&As, and other corporate transactions.



Webinar

Strafford webinars offer several options for participation: online viewing of speaker-controlled PowerPoint presentations with audio via computer speakers or via phone; or audio only via telephone (download speaker handouts prior to the program).  Please note that our webinars do not feature videos of the presenters.

Program Materials

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Program Materials

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CLE Credits By State

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Customer Reviews

The program covered topics that are of significant concern to many of my clients and I enjoyed the good discussion of the case law supporting the various points made.

Larry Crabtree

King & Ballow

The seminar was understandable, fluid and thorough for the topics covered.

Susan L. Dolin, Esq.

Susan L. Dolin

The webinar provided a good summary of the successor and alter ego liability cases.

Joseph Hugg

DLA Piper

The discussion of private equity fund issues and extraterritorial application of alter ego and controlled group liability was particularly helpful.

Frank VanderPloeg

SNR Denton

Good materials plus well prepared presenters and a good level of detail.

John H. Merkle

Fredrikson & Byron

Employment & ERISA Advisory Board

Susan E. Bernstein

Special Counsel

Schulte Roth & Zabel

Judith (Jude) Biggs

Partner

Holland & Hart

Joshua Davis

Director

Goulston & Storrs

Barbara E. Hoey

Partner

Kelley Drye

Jeffrey Hollingsworth

Partner

Perkins Coie

Diana L. Hoover

Partner

Hoover Kernell

Paul J. Kennedy

Shareholder

Littler Mendelson

Marcia Nelson Jackson

Partner

Wick Phillips

William C. Martucci

Partner

Shook Hardy & Bacon

Nancy Morrison O'Connor

Partner

Bracewell & Giuliani

Laura Foote Reiff

Shareholder

Greenberg Traurig

Eugene Scalia

Partner

Gibson Dunn & Crutcher

Peter Steinmeyer

Member

Epstein Becker & Green

Teresa R. Tracy

Partner

Freeman Freeman Smiley

Todd D. Wozniak

Shareholder

Greenberg Traurig

Our Guarantee

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