As we previously reported, in Sun Capital, the U.S. Court of Appeals for the First Circuit held in 2013 that a private investment fund, pursuant to the so-called “investment plus” test first articulated by the Pension Benefit Guaranty Corporation (the PBGC), was engaged in a “trade or business” under the Employee Retirement Income Security Act of 1974, as amended (ERISA) and could therefore be part of a “controlled group” with one of its portfolio companies and potentially liable for the portfolio company’s underfunded pension liabilities. The Sun Capital case was remanded to the U.S. District Court of Massachusetts for further proceedings on whether a related private investment fund that invested in the portfolio company was also engaged in a “trade or business” and whether the two funds were under “common control” with the portfolio company. On March 28, 2016, the District Court determined that the second private investment fund was engaged in a “trade or business” and that the two funds’ co-investment in the portfolio company constituted a “partnership-in-fact” (resulting in the aggregation of their ownership interests in the portfolio company) that was also engaged in a “trade or business.” This determination resulted in both funds being treated as part of the portfolio company’s “controlled group.”
This decision could have far-reaching implications.
- The District Court essentially substituted the statutory 80% ownership threshold for controlled group liability with a facts-and-circumstances analysis that could establish controlled groups among separate independent entities with ownership interests below 80% in a common subsidiary.
- In addition, the District Court took an expansive view of what constitutes an “economic benefit” that will satisfy the “investment plus” test articulated by the First Circuit for whether a private investment fund is a “trade or business.” In particular, the District Court found that management fee offsets could constitute an “economic benefit” even if the offsets are carried forward and potentially never used.
The PBGC and multiemployer pension plans may use this decision to further bolster their efforts to collect plan termination and withdrawal liability from private investment funds (and their other portfolio companies) that might be considered a part of a portfolio company’s “controlled group.” In addition, being a member of a “controlled group” may create other administrative issues, such as nondiscrimination testing on a controlled group basis for tax-qualified retirement plans and certain welfare plans. Controlled group members also have to consider the implications of being in a controlled group for purposes of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (COBRA), health care reform and Section 409A of the Internal Revenue Code of 1986, as amended (Code), among other legal requirements. Pending future guidance from the government agencies (in particular, the Internal Revenue Service), the broader implications of this decision for employers and their employee benefit plans remains uncertain.
In short, private equity fund sponsors should be aware that (i) acquiring an 80% (or more) interest in a portfolio company, whether within one private equity fund or pursuant to a “joint venture” between related (and maybe even unrelated) funds, may trigger joint and several liability for the portfolio company’s underfunded pension or withdrawal liabilities, and (ii) even a smaller ownership interest percentage could possibly trigger the ERISA “controlled group” rules based on complicated “common control” determinations.
For additional information about this case and its impact, please see our client alert.