For a multiemployer pension fund to hold an asset purchaser liable for withdrawal liability as a successor-in-interest, the fund must establish that the purchaser was (i) on notice of the seller’s withdrawal liability, and (ii) the purchaser “substantially continued” the seller’s operations.  In Ind. Elec. Workers Pension Benefit Fund v. ManWeb Servs., No. 16-cv-2840, 2018 WL 1250471 (7th Cir. Mar. 12, 2018), the Seventh Circuit rejected the purchaser’s so-called “big buyer” defense that it did not substantially continue the seller’s business because the seller’s operations made up only a small proportion of the purchaser’s operations.  In so ruling, the Court explained that the appropriate inquiry was the extent to which the purchaser continues the seller’s business after the asset purchase, which required an evaluation of the totality of the circumstances.  Here, the Court observed that the “big buyer” defense would allow a large buyer that continued its predecessor’s business under a different name to escape liability simply because of its size, contrary to the goals of the Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”) to protect multiemployer plans from the damaging consequences of employer withdrawals.  In rejecting the “big buyer” defense, the Seventh Circuit distinguished as outdated an earlier decision by the Ninth Circuit in Resilient Floor Covering Pension Tr. Fund Bd. of Trustees v. Michael’s Floor Covering, Inc., 801 F.3d 1079, 1098 (9th Cir. 2015), which had held that the appropriate inquiry was whether a majority of the buyer’s workforce consisted of the seller’s former employees.

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Photo of Anthony Cacace Anthony Cacace

Anthony S. Cacace is a partner in Proskauer’s Labor & Employment Law Department and a member of the Employee Benefits & Executive Compensation Group. Anthony serves as legal counsel to the boards of trustees and other fiduciaries of Taft-Hartley multiemployer pension and welfare…

Anthony S. Cacace is a partner in Proskauer’s Labor & Employment Law Department and a member of the Employee Benefits & Executive Compensation Group. Anthony serves as legal counsel to the boards of trustees and other fiduciaries of Taft-Hartley multiemployer pension and welfare benefit plans subject to ERISA in a variety of industries. These include construction, transportation, private sanitation, trucking, industrial, health care and maritime.

Anthony’s representation of trustees and other fiduciaries ranges from counseling on the day-to-day operations of multiemployer funds, including:

  • drafting plan documents, amendments and procedures;
  • negotiating and drafting fund service provider agreements;
  • counseling with respect to participant claims; and
  • providing legal advice with respect to requirements of ERISA and the IRC.

His practice also includes more complex and high stakes scenarios, such as:

  • advising on fund mergers;
  • advising on fund acquisitions of real property;
  • drafting and submitting corrective applications to the IRS; and
  • counseling fiduciaries in investigations and audits by governmental agencies (including the U.S. DOL, U.S. DOJ and the IRS).

Anthony’s practice is unique because of his specialization in ERISA litigation. He advises trustees and fiduciaries from a litigation avoidance perspective, solving problems and rendering advice in risk exposure situations before they evolve into disputes or litigations. A skilled litigator, he often defends trustees and fiduciaries in lawsuits brought pursuant to ERISA, alleging claims for breaches of fiduciary duty, benefit claim denials, plan investment losses and improper plan amendments. In addition, he regularly represents his fund clients as plaintiffs in court, seeking to collect withdrawal liability and delinquent contributions from contributing employers.

Anthony is an accomplished author and speaker on issues confronting trustees of multiemployer funds. He has authored several articles featured in Bloomberg Law Reports and Benefits Magazine, and also serves as a chapter editor of the withdrawal liability section of the American Bar Association’s Employee Benefits Law treatise published by BNA. Anthony is routinely invited to speak at International Foundation of Employee Benefit Plans conferences and the ABA Employee Benefits Committee mid-winter meetings.

Photo of Neil V. Shah Neil V. Shah

Neil V. Shah is an associate in the Labor & Employment Law Department and a member of the Employee Benefits & Executive Compensation Group, where he focuses on ERISA litigation.

Neil represents plan sponsors, trustees, and other fiduciaries in ERISA class actions for…

Neil V. Shah is an associate in the Labor & Employment Law Department and a member of the Employee Benefits & Executive Compensation Group, where he focuses on ERISA litigation.

Neil represents plan sponsors, trustees, and other fiduciaries in ERISA class actions for breach of fiduciary duty arising out of investment losses and prohibited transactions, as well as Department of Labor and other governmental and internal investigations.  Neil also counsels both employers and multiemployer funds regarding the assessment and collection of delinquent contributions and withdrawal liability.

Prior to joining Proskauer, Neil was an associate at a large regional firm, where he litigated individual and class actions involving challenges to insurer claims adjudication procedures under ERISA, fraud recoveries against healthcare providers, and claims for benefits.

Neil has authored several articles, including those published in the New Jersey Law Journal and Bloomberg National Affairs. He is also a frequent contributor to Proskauer’s Employee Benefits & Executive Compensation Blog.