Successor Liability in Asset Sales and Distressed Benefit Plans: Best Practices for ERISA Counsel

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

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


Conducted on Tuesday, May 1, 2018

Recorded event now available

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Program Materials

This CLE webinar will provide ERISA counsel with a review of controlled group and successor liability theories by which an entity can be held jointly and severally liable for unpaid or underfunded pension liabilities of another entity.

Description

The PBGC and multiemployer pension plans are increasingly pursuing controlled group members for distressed pension claims.

Under ERISA, each member of a “controlled group” is jointly and severally liable for certain defined benefit pension plan liabilities, including withdrawal liability that arises when an employer ceases contributions to a multiemployer pension plan. In a series of decisions in Sun Capital Partners III L.P. v. New England Teamsters & Trucking Indus. Pension Fund (Sun Capital), the courts held that certain private investment funds could constitute “trades or businesses” for controlled group purposes and that separate investment funds could be deemed to have entered a “partnership-in-fact” (resulting in the aggregation of their ownership interests in the portfolio company) and are therefore jointly and severally liable for a portfolio company’s withdrawal liability even when neither of the funds individually owned 80% or more of the portfolio company.

More recently, and in response to Sun Capital, a private investment fund filed suit for a declaratory judgment that it is not subject to joint and several liability for a portfolio company’s pension liabilities in Trilantic Capital Partners IV L.P. v. United Food & Commercial Workers Int'l. Union-Indus. Pension Fund (Trilantic).

Controlled group and successor liability are a means of targeting deep pockets to satisfy benefit plan liabilities in the context of asset sales and private equity investments. In addition, successor liability claims are not 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.

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Outline

  1. Controlled group liability
    1. Unfunded pension liability and PBGC claims
    2. Multiemployer pension plan withdrawal liability
    3. Identifying controlled group members
    4. Analyzing potential liability of controlled group
    5. 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. Transaction considerations

Benefits

The panel will review these and other key issues:

  • Controlled group liability sought by multiemployer plans and the PBGC
  • Revisiting Sun Capital and more recently, Trilantic, and determining what constitutes a “controlled group” and “trades or businesses”
  • Steps buyers in asset purchase deals can take to minimize successor liability for the seller’s plan liabilities

Faculty

Keller, Eric
Eric R. Keller

Partner
Paul Hastings

Mr. Keller represents clients in all aspects of executive compensation and employee benefits law. In this regard, he...  |  Read More

Alex, Justin
Justin S. Alex

Proskauer Rose

Mr. Alex is a member of the firm's Employee Benefits & Executive Compensation Group. He advises private and...  |  Read More

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