One of the most difficult rules for our non-U.S. based clients to accept is controlled group liability for plan termination under Title IV of the Employee Retirement Income Security Act of 1974, as amended (ERISA). Under these rules, all members of the controlled group may be jointly and severally liable for underfunding when a plan is terminated, even if they did not sponsor or contribute to the plan and even if they have no employees covered under it. There is no exclusion for non-U.S businesses, and they may seem like a deep pocket because they are not included when there are U.S. bankruptcy proceedings.
The U.S. Pension Benefit Guaranty Corporation’s (PBGC) position has long been that it may reach affiliates anywhere in the world to recover unfunded pension termination liabilities. A lien arises in favor of the PBGC under Section 4068 of ERISA upon refusal of PBGC’s demand that a responsible person pay the pension termination liability. The lien is limited to 30 percent of the controlled group’s net worth.
A common question we hear after explaining the rules is: how can the PBGC recover from us if we do not do business in the United States?
And, in fact, prior case law calls into question the PBGC’s ability to obtain jurisdiction automatically over foreign affiliates notwithstanding the language in ERISA that purports to pierce the corporate veil of a controlled group of companies. However, a recent memorandum opinion issued by the United States District Court of the District of Columbia, Pension Benefit Guaranty Corporation v. Asahi Tec Corporation, permitted the PBGC to proceed against a Japanese parent of the plan sponsor. While this decision represents just one lower federal court’s opinion, we think it may make it easier for the PBGC to obtain personal jurisdiction over affiliates of U.S. plan sponsors.
This lawsuit arose after the PBGC took over the Metaldyne Pension Plan to force an involuntary termination. PBGC seeks $175 million from the parent company of Metaldyne, which filed for bankruptcy reorganization under Chapter 11 of the U.S. Bankruptcy Code and did not fund its pension plan. The non-U.S. parent company, Asahi Tec, moved unsuccessfully to dismiss the PBGC’s complaint on the ground that Asahi had no role regarding the U.S. plan or its termination.
The court found that the plain language of the statute subjected Asahi to personal jurisdiction when it became a member of the controlled group, i.e., when it purchased Metaldyne. It was not necessary to show that Asahi directed Metaldyne’s activities as an “alter ego” or directed the termination. However, the court also emphasized the fact that Asahi engaged a pension consultant to perform due diligence before the closing and that it was not only aware of the potential pension liability, but also adjusted its offering price to take it into account. It acquired Metaldyne “with its eyes wide open.”
Of course, we worry about the tone of this opinion, which, despite the language suggesting automatic jurisdiction, seems in other places to suggest that if Asahi had remained ignorant of its U.S. pension liabilities it might have avoided the long-arm of ERISA and the PBGC.
Prior case law is inconsistent with this decision. For example, the PBGC was previously unsuccessful in its attempts to assert Title IV liability against a Canadian parent and against two U.K. entities. In both cases, the courts found the parent-subsidiary relationship insufficient to establish personal jurisdiction. In at least one instance, PBGC has also pursued its claims in a foreign jurisdiction, but its suit relating to Ivaco Corporation in a Canadian court was ultimately settled. (Note, however, that Section 4068(d) of ERISA provides that PBGC must bring action to enforce its lien “in a district court of the United States.”)
It is important to remember that the Asahi decision is law only in the D.C. Circuit and could be appealed. Further, the Court merely allowed PBGC to proceed with its claim, and did not determine that Asahi was liable, though that may follow from the reasoning in the initial decision.
Meanwhile, as PGBC becomes more aggressive in pursuing these claims, thorough due diligence about a target’s defined benefit plans becomes increasingly important. Despite the suggestion in the Asahi decision, ignorance is not bliss. You cannot adjust the purchase price of a target or plan to manage liabilities if you do not know about them.