District Court Affirms Withdrawal Liability Calculations, But Appears to Leave an Opening
Working right before the holiday, New Jersey District Court Judge Kevin McNulty issued a lengthy opinion late on July 3 in Manhattan Ford Lincoln, Inc. v UAW Local 259 Pension Fund. The case concerns the withdrawal liability assessed against Manhattan Ford, a withdrawing employer from a multiemployer pension plan and the actuarial assumptions used for the calculations. While this is far from the first case on this topic, it may be instructive to contributing employers who are considering withdrawing from multiemployer plans and for consultants and actuaries who work with these plans.
Before diving too deeply into the case, we need some background for readers who do not work in the multiemployer plan world on a daily basis. As the background is geared toward the more casual reader than to the multiemployer expert, we’ve intentionally omitted some details.
In 1980, Congress passed and President Carter signed into law the Multiemployer Pension Plans Amendments Act (MPPAA). In part, MPPAA established the concept of withdrawal liability as a means of ensuring that employers who choose to leave those plans pay their fair share of any unfunded liabilities.
For years, one of the frustrations of many who are involved with multiemployer plans has been the lack of guidance on actuarial assumptions particularly the discount rate to be used in determining the vested benefit liability (VBL) under a plan. That said, the statutory language that provides much of the guidance that we have in this arena and the language that the fund’s actuary looks to in determining the discount rate to be used in annual actuarial valuations are somewhat instructive.
Quoting from a footnote in Judge McNulty’s opinion, “The main upshot, for our purposes, is that under current law, ‘each’ actuarial assumption must be reasonable for the purpose of minimum funding, whereas they must be reasonable ‘in the aggregate’ for purposes of withdrawal liability.” The language here is strikingly similar yet as we will discuss later, the calculations are often very far apart.
In this particular case, the plan’s Enrolled Actuary (EA) used the Segal Blend (a method developed by the Segal Company in the early days of MPPAA) as a means of discounting in order to determine the fund’s VBL and therefore the unfunded vested benefits (UVB) as well. To understand this case and the distinctions we will make later, we’ll have to get hypertechnical (yet still oversimplified) for a moment to explain the Segal Blend. The Segal Blend essentially does two calculations and blends them. It considers that liabilities that can be settled by plan assets are assumed to have their risk transferred and therefore use PBGC rates (the rates inherent in insurance company annuity settlements) to discount the liabilities. But, for the portion of the liabilities not covered by plan assets, it acknowledges a risk premium and uses the funding interest rate (the EA’s best estimate of future investment returns).
In Manhattan Ford, the fund’s calculation performed by the EA showed that the withdrawing employer owed a roughly $2.5 million withdrawal liability based on the Segal Blend. The employer challenged the calculation and an arbitrator found in favor of the fund. Manhattan Ford appealed to the District Court.
Judge McNulty found that two essential questions were raised [quoting]:
- As a matter of ERISA law, must a pension plan’s actuary use identical actuarial assumptions to calculate the plan’s satisfaction of minimum funding requirements and its unfunded vested benefits (“UVB”) for withdrawal liability?
- Assuming the answer to question 1 is “no,” did the Arbitrator err in this case when he found that the discount rate applied by the Pension Fund’s actuary to determine Manhattan Ford’s withdrawal liability, the Segal Blend, did not render the actuarial assumptions “in the aggregate, unreasonable (taking into account the experience of the plan and reasonable expectations)”?
Suppose our plan has assets of $1 billion and liabilities discounted at 8% of $1 billion. Then, the unfunded liability at 8% is $0. However, decreasing our discount rate to 3% increases our liabilities to $1.6 billion and increases our unfunded liability from $0 to $600 million. That helps us to illustrate the extreme leverage inherent in many of these calculations.