More Egregious Aggregation Under ERISA in the Sun Capital Partners Case? The District Court Goes Down Yet Another Road

by Dechert LLP
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The recent opinion by the U.S. District Court for the District of Massachusetts on remand from the U.S. Court of Appeals for the First Circuit in the Sun Capital Partners case may be troubling to private equity funds and other investment funds that invest in portfolio companies with significant liabilities under the Employee Retirement Income Security Act of 1974 (“ERISA”). As we previously discussed in a 2013 OnPoint, under the First Circuit’s decision in 2013, an investment fund that owns 80% or more of a portfolio company may effectively be aggregated with the portfolio company for ERISA purposes and share its ERISA liabilities, depending on whether the fund is considered a “trade or business” based on the relevant facts and circumstances. 

Now, under the District Court’s recent decision, even an investment fund that owns less than 80% of a portfolio company may effectively be aggregated with the portfolio company and share its ERISA liabilities if, based on certain relevant facts and circumstances, the fund is deemed to have created a partnership-in-fact with a related fund, such that the funds’ ownership interests are aggregated for purposes of satisfying the 80% threshold. The District Court’s thinking is that the deemed partnership is aggregated with the portfolio company, and then the funds share the liability of the deemed partnership under general partnership principles. 

The District Court’s reliance on this deemed-partnership approach to reach a result that was expressly rejected by the First Circuit on other grounds could be of concern to those private equity funds and other investment funds with similar investment structures and activities as those involved in Sun Capital Partners. However, while the District Court’s rationale is troubling, the decision is from a lower court, and it is not at all clear that a Circuit Court (including the First Circuit) would agree with the District Court’s novel approach.

Background

Private equity and similar funds sometimes invest in portfolio companies that may have significant liabilities under ERISA and the employee-benefits provisions of the Internal Revenue Code of 1986 (the “Code”). For example, a company may have a substantially underfunded defined benefit pension plan or significant potential withdrawal liability under a multiemployer pension plan.

A lurking question that has persisted is whether, if a fund’s ownership interest in a portfolio company exceeds a certain percentage threshold, the fund and the portfolio company are aggregated as a single employer for certain liability and other purposes under ERISA and the Code. ERISA and the Code provide in general terms that the 80%-or-more affiliated group of corporations or “trades or businesses,” commonly referred to as a “controlled group,” may effectively be aggregated and viewed as a single employer.

The aggregation question is a critical one, as liabilities under ERISA and the Code can in some cases be very significant. The effects of aggregation under ERISA and the Code may include, among other things:

  • joint and several liability under the ERISA provisions applicable to defined benefit pension plans governing funding and plan termination and the rules governing withdrawal liability to a multiemployer pension plan;
  • imposition of certain excise taxes on all applicable affiliates jointly and severally;
  • application of nondiscrimination and other rules applicable to employee benefit plans on a controlled-group basis; and
  • responsibility for “COBRA” compliance on a controlled-group basis.

The aggregation question for investment funds has attracted increasing attention ever since the release of a September 26, 2007 letter (the “PBGC Letter”) from the Appeals Board of the Pension Benefit Guaranty Corporation (the “PBGC”). The PBGC has general administrative responsibility under the ERISA provisions applicable to the termination of defined benefit pension plans and withdrawal liability to multiemployer pension plans. 

The specific aggregation provision that applies for purposes of the withdrawal liability rules and which was at issue in Sun Capital Partners is Section 4001(b)(1) of ERISA, which provides that, “under regulations prescribed by the [PBGC], all employees of trades or businesses (whether or not incorporated) which are under common control shall be treated as employed by a single employer and all such trades and businesses as a single employer.” For many funds, the analysis under the withdrawal liability and other ERISA controlled-group rules can turn, in part, on the critical threshold question of whether a particular investment fund is a “trade or business” for these purposes. 

If the fund is not a “trade or business,” aggregation may not be required, regardless of whether the fund has sufficient ownership interest in a portfolio company to be considered to be under “common control” with the portfolio company. The PBGC Letter concluded that the private equity fund there at issue was a “trade or business” under Section 4001(b)(1) of ERISA, and that certain of its subsidiaries should be considered, together with such fund, to be a single employer under ERISA. 

Sun Capital Partners v. N.E. Teamsters and Trucking Industry Pension Fund

In Sun Capital Partners, a number of affiliated investment funds (collectively, the “Sun Funds”) formed a limited liability company (an “LLC”) to indirectly acquire a particular portfolio company (the “Portfolio Company”). One of the Sun Funds, “Sun Fund III” (which consisted of two parallel funds), owned 30% of the LLC and another Sun Fund, “Sun Fund IV,” owned the other 70%, such that Sun Fund III and Sun Fund IV together indirectly owned 100% of the Portfolio Company. Shortly after the acquisition by the Sun Funds, the Portfolio Company went bankrupt. In connection with its bankruptcy, the Portfolio Company withdrew from the multiemployer plan (the “Multiemployer Plan”) of which it was a member. As a result, the Portfolio Company incurred withdrawal liability to the Multiemployer Plan of approximately US$4.5 million. The Multiemployer Plan sought to collect the liability from both the Portfolio Company and the Sun Funds, based on the ERISA aggregation rules noted above. The Sun Funds filed a declaratory judgment action in federal district court in Massachusetts, seeking a declaration that they were not subject to withdrawal liability to the Multiemployer Plan on the bases that: (i) the Sun Funds were not part of a joint venture or partnership and therefore did not meet the “common control” requirement for ERISA aggregation; and (ii) neither of the Sun Funds was a “trade or business” that could be properly aggregated with the Portfolio Company under ERISA. 

The District Court’s Initial Decision and the First Circuit’s Decision on Appeal

In October 2012, the U.S. District Court for the District of Massachusetts granted summary judgment in favor of the Sun Funds, finding that neither of the Sun Funds was a “trade or business” as intended by ERISA. In doing so, the District Court squarely rejected the PBGC Letter’s approach to the “trade or business” question. The District Court did not need to reach the other condition that must be satisfied to impose withdrawal liability on the Sun Funds, i.e., the question of whether either Sun Fund was under “common control” with the Portfolio Company.  

In July 2013, the First Circuit reversed the District Court’s decision on the “trade or business” issue. The First Circuit held that, when evaluating whether an investment fund is a “trade or business” for purposes of the ERISA aggregation rules, courts should use some form of an “investment plus” analysis that considers a number of factors. However, the First Circuit declined to set forth specific factors that would be included in the “plus” part of the “investment plus” analysis. Applying the “investment plus” standard to the Sun Funds’ investment in the Portfolio Company, the First Circuit determined that Sun Fund IV was a “trade or business” because, in part, its “active involvement in management” provided it with a “direct economic benefit.” Specifically, the fees paid by the Portfolio Company to an affiliate of Sun Fund IV’s general partner for its management services were used to offset management fees that Sun Fund IV otherwise would have owed its general partner. The First Circuit was unable to determine, however, whether Sun Fund III received similar management fee offsets, and remanded the case to the District Court to make that determination. The First Circuit also directed the District Court to determine whether the Sun Funds were under “common control” with the Portfolio Company in order to obligate the Sun Funds for the Portfolio Company’s ERISA withdrawal liability.1

The District Court’s Decision on Remand

On remand, the District Court first addressed whether Sun Fund III was a “trade or business.” After a detailed review of Sun Fund III’s management fee arrangements, the Court determined that the management fees Sun Fund III otherwise would have owed its general partner were indeed offset by the fees that the Portfolio Company paid to an affiliate of the Sun Fund III’s general partner. Therefore, the District Court concluded that the “trade or business” prong of the controlled-group withdrawal liability test under ERISA was satisfied with respect to Sun Fund III. The District Court also rejected the Sun Funds’ contention that the First Circuit had erroneously held that Sun Fund IV was a “trade or business.” 

After determining that both Sun Funds were involved in a “trade or business” for purposes of ERISA, the District Court moved onto the “common control” question. The District Court determined that, although each Sun Fund’s respective ownership stake in the Portfolio Company was under 80%, both Sun Funds were ultimately liable for the Portfolio Company’s withdrawal liability. In order to reach such determination, the District Court proceeded to create a deemed partnership between the two Sun Funds over the LLC, as further discussed below. 

The District Court, using an approach urged by the Multiemployer Plan, determined that the two Sun Funds had together created a partnership-in-fact to invest in the Portfolio Company, even though the Sun Funds had indeed created an actual LLC to acquire the Portfolio Company. In this regard, the District Court found that a partnership-in-fact between the Sun Funds existed largely on the basis that they engaged in “joint activity” prior to deciding to co-invest in the Portfolio Company through an LLC. The District Court noted that this “joint activity” covered “at least the period” before the acquisition was completed and “would appear to extend” through the operation of the Portfolio Company. The District Court also viewed the 70%/30% split between the two Sun Funds as a choice showing “an identity of interest and unity of decisionmaking between the [Sun] Funds rather than independence and mere incidental contractual coordination,” and as an investment structure stemming from “top-down decisions to allocate responsibilities jointly . . . and offer advantages to the Sun Funds group as a whole.” The Court further observed that there was “no meaningful evidence of actual independence” between the Sun Funds in their co-investments because the Sun Funds did not show, for example, that they sometimes co-invested with each other but also co-invested with other unaffiliated entities, or that they had any disagreements with respect to the Portfolio Company’s operations. Rather, the District Court found that the “smooth coordination [was] indicative of a partnership-in-fact sitting atop the LLC: a site of joining together and forming a community of interest.” 

The District Court proceeded to determine that the partnership-in-fact was a “trade or business” for ERISA purposes. To characterize the partnership as a “trade or business,” the District Court relied on the same facts that led to its finding that the Sun Funds were trades or businesses, stating:

Like the Sun Funds, the partnership’s purpose is to make a profit, an important factor in determining “trade or business” status, although an insufficient one. Additionally, the partnership was involved in the active management of the portfolio companies that the First Circuit found critical. For example, the First Circuit found it important that the Sun Funds’ purpose is “to seek out potential portfolio companies that are in need of extensive intervention” and that “restructuring and operating plans are developed for a target portfolio company even before it is acquired.” This period of joint investigation and action prior to the formation of an LLC is central to the work of the partnership itself – it is an important piece of why I find a partnership-in-fact to exist – and so is highly indicative of that partnership being a trade or business. 

. . . . 

For precisely the same reasons as the Sun Funds are trades or businesses, the partnership or joint venture formed between them is so as well. 

Having held that the deemed partnership with respect to the Sun Funds was a trade or business, which owned 100% of the Portfolio Company, the deemed partnership then became aggregated with the Portfolio Company for ERISA purposes, thereby causing the deemed partnership to be jointly and severally responsible for the LLC’s ERISA liability, and in turn, for the Portfolio Company’s withdrawal liability. Having now gotten the withdrawal liability to the deemed partnership, the District Court then pushed the liability up to Sun Fund III and Sun Fund IV under general partnership principles, as they were partners in the deemed partnership that the District Court had discovered.

It is worth noting that the First Circuit in its 2013 decision expressly rejected the Multiemployer Plan’s claim under Section 4212(c) of ERISA that the Sun Funds had engaged in a transaction to evade or avoid withdrawal liability and that, therefore, the 70%/30% split should be disregarded for purposes of ERISA aggregation. In relevant part, the First Circuit stated:

This is simply not a case about an entity with a controlling stake of 80% or more under the MPPAA seeking to shed its controlling status to avoid withdrawal liability. As such, disregarding the agreement to divide ownership of [the LLC] would not leave us with Sun Fund IV holding a controlling 80% stake in [the Portfolio Company]. The Sun Funds are not subject to liability pursuant to [Section 4212(c) of ERISA] and the district court's conclusion that they are not is affirmed. 

The District Court’s finding of a partnership-in-fact under its “common control” analysis is a new analytical route to cause each Sun Fund to be responsible for the ERISA liability of the Portfolio Company, notwithstanding that neither Sun Fund reached the 80% ownership threshold.2

Conclusion

By inserting a partnership-in-fact in the investment structure specifically designed to avoid the 80% threshold, the District Court creates the possibility that any number of affiliated funds could be deemed to have created a partnership and effectively be subject to the ERISA liabilities of their portfolio companies. Unfortunately, the District Court decision is a high-profile case that does impose responsibility on investment funds for the ERISA liabilities of a company in which the funds invest. As a result, funds and their sponsors may want to consider the District Court’s approach in Sun Capital Partners as they structure their investments where the portfolio companies in which they invest are 80%-or-more owned by affiliated funds. However, the decision is merely one at the District Court level, and indeed, is being appealed and may be reversed. Additionally, courts in other circuits that have not yet considered this issue may well be presented in the future with the opportunity to analyze the issue for themselves, and otherwise to give the matter their own careful and critical review. Thus, it should not by any means be assumed that the novel rationale put forth by the District Court in Sun Capital Partners will ultimately carry the day.

Footnotes

1) It is noted that both the District Court and the First Circuit on appeal collapsed the two parallel sub-funds comprising Sun Fund III as a single fund for purposes of addressing the issues involved in the decisions. The collapsing of these two sub-funds as such could potentially be of significant concern to sponsors of similarly structured fund complexes.

2) Under a straight ERISA-driven aggregation analysis, the concern is that both the fund (if a trade or business) and its 80%-or-more portfolio companies all share the ERISA liabilities of each of the 80%-or-more portfolio companies. It is interesting to note that, under the District Court’s view, since the funds’ liability is under general partnership law, the various portfolio companies might not share each other’s ERISA liabilities, unless any one fund owns 80% or more of the multiple portfolio companies.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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