The District Court accepted the argument of Sun Capital Partners that their funds were not "trades or businesses" and were therefore not liable for withdrawal liability payments. But, the Appeals Court held that the Sun funds invested in Scott Brass "with the principal purpose of making profit." Further, although Sun argued that it had no employees, the Court noted that the partners of the Sun funds had and exercised the authority to hire, fire, and compensate employees of Scott Brass. Additionally, partners of the Sun funds were "actively involved in management and operation" of the company.
The implications of this ruling are potentially far more significant than just this withdrawal liability case. Diligent readers (I certainly hope I have a few) may recall that nearly two years ago, I wrote on retirement compliance issues for private equity funds. At least a few readers wrote to me to tell me that private equity funds were exempt because they were not, in fact, businesses.
While I am not an attorney and am therefore not technically qualified to opine on what the Appeals Court said, I can read. This seems to make clear to me that at least in the states of Maine, Massachusetts, New Hampshire, and Rhode Island as well as the Commonwealth of Puerto Rico, private equity funds can be businesses. Since there primary purpose generally is to make a profit and since they tend to exercise some management authority over the companies in their portfolios, it strikes me that this ruling can be construed to make them (where they have 80% common ownership) a controlled group of companies.
So, private equity funds beware. This means that:
- you and your partners might be jointly and severally liable for funding of qualified retirement plans in the controlled group
- all those retirement plans in the controlled group are subject to the nondiscrimination, coverage and minimum participation rules of ERISA and the Internal Revenue Code
- we could say the same about welfare benefit plans and their nondiscrimination requirements
Of course, there are other requirements and pitfalls, but I thought it worth it to point out a few. The effect here could be significant. How many companies that are owned by private equity funds, for example, do their nondiscrimination testing on a controlled group? Or, conversely, how many do not?
Somebody out there is going to latch onto this and stir up some trouble. The question to me is will other circuits follow the first?