Where Do We Go Now? The Uncertain Future for 29 U.S.C. § 1301(b)(1), Private Equity Funds, and Multiemployer Pension Plans after Sun Capita

Authors

Crighton T. Allen, University of Georgia School of Law

Publication Date

2014

Abstract

The United States faces a growing problem concerning corporate indebtedness to pension plans, specifically, multi-employer pension plans (MEPPs). MEPPs are group pension plans in which a number of employers join together to contribute to a fund benefitting all employees of the participating companies. If an employer seeks to withdraw from a MEPP by ceasing to contribute into it, the company faces a withdrawal penalty-its proportionate share of the plan's vested but unfunded benefits. The recent decision by the First Circuit in Sun Capital Partners III, LP v. New England Teamsters & Trucking Industry Pension Fund has the potential to greatly impact the long-term viability of MEPPs going forward and to unsettle another entity also receiving recent national attention, private equity funds. In Sun Capital, the court held that the private equity fund Sun Fund IV is a "trade or business" under § 1301(b) of the Employment Retirement Income Security Act. As a "trade of business," the fund (if it satisfies other statutory requirements, as determined on remand) can be held jointly and severally liable for the MEPP withdrawal liability of a now- bankrupt company that it acquired as part of its investment strategy. This Note argues that Sun Capital was wrongly decided as a matter of statutory interpretation and policy by exploring Sun Capital's flawed analysis and suggesting the ramifications for both the private equity industry and MEPPs the decision might engender going forward.

Recommended Citation

Allen, Crighton T. (2014) "Where Do We Go Now? The Uncertain Future for 29 U.S.C. § 1301(b)(1), Private Equity Funds, and Multiemployer Pension Plans after Sun Capita," Georgia Law Review: Vol. 49: No. 1, Article 5.
Available at: https://digitalcommons.law.uga.edu/glr/vol49/iss1/5