Supreme Court Denies Review of PE Firm Withdrawal Liability Case

Without explanation, the U.S. Supreme Court has denied a petition to review the case of New England Teamsters and Trucking Industry Pension Fund v. Sun Capital Partners, et. al.

The fund has been in a long-running legal attempt to collect withdrawal liability from two entities of Sun Capital Partners as members of an implied partnership-in-fact under “common control” with Scott Brass Inc. (SBI), a withdrawing employer from the fund. The Supreme Court’s denial lets stand a 1st U.S. Circuit Court of Appeals decision in which it reversed a U.S. District Court ruling that there was an implied partnership-in-fact which constituted a control group and made the two funds liable for the pro rata share of unfunded vested benefits owed to the pension fund. In other words, the appellate court ruling determined the private equity firms are not responsible for paying the withdrawal liability.

In its petition to the high court in August, the New England Teamsters and Trucking Industry Pension Fund said the appellate court’s decision reversing the district court’s finding of a partnership-in-fact is based on its “reluctance” to impose withdrawal liability for private equity (PE) funds and provides “a blueprint for such funds to escape withdrawal liability while securing virtually risk-free investments in portfolio companies with known, unfunded pension liability.” The pension fund says the decision limits recovery of withdrawal liability by multiemployer pension funds.

“In essence, it has created a judicial exemption to withdrawal liability that shields private equity firms,” the fund claimed in its petition.

John Lowell, an Atlanta-based actuary and a partner with October Three Consulting LLC, has told PLANSPONSOR that more private equity funds are doing acquisitions in industries where multiemployer plans are common.