Monday, January 3, 2022

Successor Liability Article

One of the murky but interesting aspects of ERISA law has been the extent to which liability under ERISA will carry over to successors who purchase the assets rather than the stock of the business. 

The general common law rule is that a company that purchases assets of another company is not responsible for the seller’s liabilities, except (i) where the purchaser expressly or impliedly agrees to assume the seller’s liabilities; (ii) where the transaction is a “de facto merger” (looking at continuity of ownership, enterprise, and management); (iii) where the purchaser corporation is a “mere continuation” (merely a restructured or reorganized form of seller’s corporate entity) of the seller; and (iv) where the transfer of assets is for the fraudulent purpose of escaping liability from the seller’s debts. 

Case law has expanded successor liability for certain obligations under ERISA in certain circumstances. Specifically, a number of cases have found successor liability for pension obligations if there is “continuity of operations”, as well as knowledge, even if this is no “continuity of ownership.”  

I recently authored an article in the Tax Management Compensation Planning Journal - at  https://tinyurl.com/erisa-successor-liability - which explores the current state of the law regarding successor liability under ERISA and other employment contexts. The article reviews seminal and recent case law on this issue in the areas of the multiemployer pension withdrawal liability contexts, single-employer pension plan termination liability, executive retirement plans, retiree health liability, ERISA fiduciary liability (according to some courts), labor law and unfair labor practices, and employment discrimination contexts. 

If you have any questions, please contact me at the address or telephone below.

Thanks

Charlie Shulman, Esq.
cshulman@ebeclaw.com 
201-357-0577

Article at https://tinyurl.com/erisa-successor-liability

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