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Multiemployer plans

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Pension Funded Status Decreased in Q2 2016 Due to Continued Interest Rate Declines (PDF)
"During the second quarter of 2016, the funded status of the model pension plan examined in each issue of Prism dropped by 3 percentage points: from 79 percent to 76 percent. This decline was the result of a 2 percent asset increase and a 6 percent liability increase during the quarter." (Segal Rogerscasey)
Application for Benefit Suspension: Bricklayers & Allied Craftsmen Local No. 7 Pension Plan
"The Bricklayers & Allied Craftsmen Local No. 7 Pension Plan application proposing benefit suspensions can be found [at the link]. The application is organized by the items specified in Revenue Procedure 2016-27. The Bricklayers Local 7 application is currently being reviewed and the review is expected to take several months. Bricklayers Local 7's representative has advised [Treasury] that individualized participant notices were sent via U.S. mail on July 1st." (U.S. Department of the Treasury)
[Opinion] This Senator Opposes a Mine Worker Pension Bailout
"Wyoming produces 40 percent of the nation's coal. That's more than the next five largest coal-producing states combined.... [T]he UMWA's unfunded pension plan ... is on track to become insolvent in less than a decade.... But as [Sen. Mike Enzi, R-Wyo.] pointed out, 'the UMWA agreement was made between the members and the UMWA, not between the members and the American taxpayer.' The union -- not taxpayers -- should have to account for the union's broken promises.... [T]he mere fact that a coal cleanup fund exists does not mean one select coal union should have access to that fund for its unfunded pensions." (The Daily Signal)
[Guidance Overview] PBGC Issues Proposed Rule for Multiemployer Plan Mergers and Transfers
"The proposed rule clarifies PBGC's authority to facilitate the merger of multiemployer plans under section 4231 of ERISA. Facilitation may include training, technical assistance, mediation, communication with stakeholders, and support with related requests to other government agencies.... PBGC may also provide financial assistance to facilitate a merger determined necessary to enable one or more of the plans involved to avoid or postpone insolvency ... The proposed rule presents noteworthy changes to the actuarial valuation requirements for mergers and plan solvency tests." (Trucker Huss)
GAO to Investigate Central States' Investments
"The investigation was requested June 21 by 10 senators and 41 congressmen, who asked GAO officials to consider several issues, including how the pension fund's fiduciaries and relevant parties ensured conflict-free investment advice with reasonable fees. The letter also asked about the investment strategy and returns from 1997 to 2015, including comparisons to similar funds for each asset class." (Pensions & Investments)
[Official Guidance] Text of Treasury Department Denial of Benefit Suspension Application for Road Carriers Local 707 Pension Fund (PDF)
"On June 10, 2016, PBGC denied the Plan's application for partition.... The Application states that the Plan is projected, absent suspension of benefits, to become insolvent by February 2017.... Treasury has determined that the suspensions described in the Application fail to satisfy the requirement ... that the proposed benefit suspensions ... be reasonably estimated to achieve, but not materially exceed, the level that is necessary to avoid insolvency, because without a partition, the Plan will not avoid insolvency[.]" (U.S. Department of the Treasury)
Spring 2016 Zone Report: Multiemployer Plans Are Predominantly 'Green' (PDF)
"[W]hile 64 percent of plans are in the green zone based on all zone certifications filed in the 12 months ending in March 2016 ... just under half of all participants are in plans in the red zone based on the full set of plan data. Significantly, about half of these red-zone participants (23 percent overall) are in plans that are considered to be 'critical and declining.' " (Segal Consulting)
Lawmakers Ask GAO to Probe Central States Fund Finances
"Ten Democrats in the Senate and 41 in the House requested on June 20 that the Government Accountability Office review the Central States, Southeast and Southwest Areas Pension Fund's investment decisions going back to 1982, when the fund came under the supervision of a court-ordered consent decree. The requests seek to determine if there was any wrongdoing that led to the fund's severe financial woes. The fund has projected it will be insolvent in 10 years or less.... The GAO is already investigating the [DOL's] supervision of the fund in response to Sen. Charles Grassley's (R-Iowa) [February] request." (Bloomberg BNA)
[Opinion] Statement by House Education and Workforce Committee Chairman on PBGC Multiemployer Pension Reports
"The bipartisan Multiemployer Pension Reform Act provides the tools necessary to save plans from insolvency and protect retirees from losing everything. When trustees are denied the opportunity to use those tools, the risk to workers, taxpayers, and retirees grows greater. [The PBGC report] is a reminder of the urgent need to enact additional reforms to strengthen multiemployer pensions, reforms that would modernize the system for workers and provide PBGC additional resources to meet its obligations." (Rep. John Kline [R-MN], Chairman of the Committee on Education and the Workforce, U.S. House of Representatives)
Text of PBGC Report to Congress on Sufficiency of Premiums Under MPRA
25 pages. "Projected premiums at the MPRA legislated rates ... become insufficient to pay average projected financial assistance obligations during FY 2024.... The range of potential [premium] increases is wide, ranging from 59 percent to 85 percent for 10 year solvency and from 363 percent to 552 percent for 20 year solvency.... A well designed [premium] increase may encourage additional contributions, encourage continued participation in plans, and strengthen the multiemployer system. A poorly designed premium increase may encourage employer withdrawals and accelerate plan insolvency with a resulting cost to plan participants and a need for even larger premiums." (Pension Benefit Guaranty Corporation [PBGC])
Text of PBGC Projections Report, FY 2015
55 pages. "PBGC's multiemployer program remains likely to use up all of its assets by the end of 2025. The program, which covers roughly one-quarter of private sector defined benefit pension participants, continues to have deficits ... much larger than those of the single-employer program. Different estimates of the number of plans that will undertake benefit suspensions or request financial assistance through partition or facilitated merger affect the projected program deficits, but have only a small effect on the date of program insolvency. New results for PBGC's single-employer program are broadly consistent with findings of the prior year's report -- the financial status of the program is likely to improve, potentially reaching net surplus over the 10-year projection period." (Pension Benefit Guaranty Corporation [PBGC])
Union Retirees Battle for Pension Payouts, Possible Bailout: What's at Stake?
"What you probably heard was the story of retired or soon-to-retire Teamster truck drivers and warehouse workers, ... members of the Central States Pension Fund who faced similar problems this year. [But retired construction worker Walter] Overstreet belongs to a much smaller union, Local 17 of the Iron Workers, with about 2,000 members altogether. Their union has $223 million in pension liabilities but only $90 million in assets. Get used to hearing such stories, because several other union pension plans are pleading similar hardships right now, and about 150 more are lined up behind them." (
Past Practice, Single Employer Doctrine Save Building Contractor That Didn't Contribute to Union's Fringe Benefit Fund
"A building contractor that subcontracted work to nonunion businesses did not necessarily violate its duty to pay contributions to a carpenters' union's fringe-benefit funds, held the Seventh Circuit.... [T]he nonunion business that was awarded the subcontract appeared to be a 'single employer' with a union signatory that ultimately performed the work, so the work was effectively done by a union business." [Chicago Regional Council of Carpenters Pension Fund v. Schal Bovis, Inc., Nos. 14-3413 & 14-3336 (7th Cir. June 10, 2016)] (Wolters Kluwer Law & Business)
Arbitrator Slashes Annual Withdrawal Liability Payments in Underfunded Multiemployer Pension Plan Dispute
"The arbitrator found persuasive the employer's argument that the plain and unambiguous language of the statute dictated that the Rehab Plan Increases were improperly included in the highest contribution rate by the Fund.... He found the Rehab Plan Increases, implemented unilaterally by the Fund under the Rehab Plan, clearly did not arise under a collective bargaining (or related) agreement." (Jackson Lewis P.C.)
[Guidance Overview] Treasury Issues Final Benefit Suspension Guidance Under MPRA (PDF)
"The statute states that in the aggregate, benefit suspensions must not materially exceed the level that is necessary to avoid insolvency. The Proposed Regulation established a numerical test for determining if this requirement is satisfied.... The Final Regulation adds a second way to satisfy this test. Under the second approach, a suspension plan will 'not materially exceed the level that is necessary to avoid insolvency' if reducing the amount of each participant's suspension by 2% of the pre-suspension benefit would cause the plan to fail to be projected to be solvent." (Groom Law Group)
Central States' Strategy: Litigate Less, Recoup More?
"Once described by the U.S. Court of Appeals for the Seventh Circuit as a 'uniquely aggressive seeker of withdrawal payments,' the fund filed 52 lawsuits in 2011 seeking withdrawal liability payments. By 2015, this dropped 35 percent, to 34.... Despite the decline in lawsuits, Central States has seen the actual dollar amount of withdrawal liability collected increase from $171 million in 2011 to $548 million in 2015 ... [One] significant factor ... is that in October 2011, the [PBGC] granted Central States' application for approval of a new alternative method of determining withdrawal liability -- the 'hybrid' method." (Bloomberg BNA)
[Guidance Overview] PBGC Issues Proposed Regs on Mergers and Transfers Between Multiemployer Plans
"[T]he proposed regulations ... [1] Allow plan sponsors to engage in informal consultations with the PBGC to discuss proposed mergers and transfers.... [2] Amend and reorder the plan solvency tests used to demonstrate that a merger or transfer would not cause the benefits of participants and beneficiaries to be subject to suspension ... [3] Extend the deadline for providing notice of a proposed facilitated merger from 120 days to 270 days before the proposed effective date of a facilitated merger." (Practical Law Company)
[Official Guidance] Text of PBGC Proposed Regs: Mergers and Transfers Between Multiemployer Plans
54 pages. "The proposed rule would provide guidance on the process for requesting a facilitated merger under section 4231(e) of ERISA, including a request for financial assistance under section 4231(e)(2).... [PBGC] will determine whether to provide further guidance on the evaluation criteria for facilitated mergers, and any limitations PBGC may impose relating to the amount of financial assistance available, based on the experience it gains implementing this proposed rule.... [T]he proposed rule includes a provision that would allow a plan sponsor to engage in informal discussion s with PBGC before filing a formal request for a facilitated merger.... PBGC does not interpret section 4231(e)(2)(B)(ii) to preclude a small, critical and declining status plan from receiving financial assistance to merge into a large, financially healthy multiemployer plan because such an interpretation would be inconsistent with the statute as a whole." (Pension Benefit Guaranty Corporation [PBGC])
[Guidance Overview] Treasury Issues Final Suspension of Benefits Regs Under MPRA
"Critical and declining plans will usually be experiencing negative cash flows, which means that the near-term returns when assets are at their highest level are much more significant in determining the actual cash flows of the plan. Accordingly, it may be appropriate to consider using a select and ultimate set of interest assumptions when performing the cash flow projections.... It is not clear if the sensitivity analyses on the different investment returns and different contribution base trends are to be performed independently or in combination with each other. Logic would suggest that all combinations should be shown." (Cheiron)
Who Will Pay Benefits of Bankrupt Multiemployer Plans?
"Multiemployer (union) plans, for a variety of reasons, will all go bankrupt. So what happens to promised benefits? The Road Carriers Local 707 Pension Fund (RC707) ... is one of five multiemployer plans looking to suspend benefits under MPRA. Their application asserts that 'the plan is projected to be insolvent by February, 2017' so they are proposing to 'reduce all of the Plan participants' pension benefits to 110 percent of the PBGC guarantee' ... The most instructive chart from the 8/31/14 valuation report is the asset history[.]" (Burypensions)
[Official Guidance] Treasury Department Notice: Teamsters Local 469's Multiemployer Pension Plan Application to Reduce Benefits
"The Board of Trustees of the Teamsters Local Union No. 469 Pension Plan, a multiemployer pension plan, has submitted an application to Treasury to reduce benefits under the plan in accordance with the Multiemployer Pension Reform Act of 2014 (MPRA). The purpose of this notice is to announce that the application submitted by the Board of Trustees of the Teamsters Local 469 Pension Plan has been published on the Treasury website, and to request public comments on the application from interested parties, including contributing employers, employee organizations, and participants and beneficiaries of the Teamsters Local 469 Pension Plan. Comments must be received by June 22, 2016." (U.S. Treasury Department)
Tenth Circuit Expands Withdrawal Liability of Construction Industry Employer
"Unionized construction employers should now closely scrutinize acquisitions within jurisdictions where the employer had previously contributed to a [multiemployer plan]: non-contributory work performed by an after-acquired entity will (at least within Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah) likely trigger withdrawal liability." [Ceco Concrete Construction, LLC v. Centennial State Carpenters Pension Trust, Nos. 15-1021, 15-1190 (10th Cir. May 3, 2016)] (Jackson Lewis P.C.)
`Zombie' Pension Plans Need Autopsies
"For retirees of Central States and other plans facing insolvency, a forensic investigation may be more productive and more likely to succeed than lobbying Congress ... If wrongdoing is found, those responsible can be made to compensate the fund for the damages they caused ... [F]und's participants could easily raise the money to hire an independent investigator through crowd sourcing or other means." (Bloomberg BNA)
Treasury Denies Central States; How Will Other Multiemployer Plans Fare?
"If the Department of the Treasury will not approve benefit suspensions under the Multitemployer Pension Reform Act (MPRA) for participants in the Central States Pension Fund then how will other multiemployer plans lined up for approvals fare? ... [This article includes links to] the latest 5500 forms for all five plans in the pipeline ... A spreadsheet comparison shows all the plans similarly situated as to depletion dates[.]" (Burypensions)
Treasury's Reasoning for Rejecting Central States Suspension Application is Misunderstood
"Many commentators ... have stated that the Treasury believes a 7.5% interest rate is not a reasonable actuarial assumption for funding a pension plan. The reasoning related to the 7.5% interest rate was much more specific ... Treasury did not say that a 7.5% investment return assumption was inappropriate for purposes of determining a plan's minimum funding requirements (or for funding a public pension plan over the long term). Instead, Treasury recognized because of Central States's specific situation (with negative cash flow), there needed to be a focus on the near term when testing whether the Plan could avoid insolvency." (Cheiron)
Failing Central States Pension Fund Is Out of Options
" 'The fact that the ... PBGC is also running out of money means our participants may see their pension benefits ultimately reduced to virtually nothing when the fund runs out of money,' [fund director Thomas Nyhan said in a letter to workers and retirees]. Only government funding, either to the Central States Fund directly or through the PBGC, can fix the problem, he said." (
Central States Pension Fund Drops Efforts to Create Second Bailout Plan
"The decision ... to drop efforts of a second rescue-package submission means the fate of the cash-strapped $16.8 billion multiemployer plan sits with federal lawmakers. Absent a congressional bailout, ... [the plan] will run out of cash by the end of 2025, said Thomas Nyhan, the group's executive director. Mr. Nyhan said ... that there wasn't enough time to resubmit a plan without cutting retiree benefits deeper than is legally allowed." (The Wall Street Journal; subscription may be required)
Crash Landing for Central States
"Treasury opined that the estimated 10-year average rate of return should have been 6.43% reflective of the Horizon Survey of investment forecasts. However, adoption of that rate would have resulted in even deeper reductions in core benefits to participants. Significantly, a review of several other multi-employer funds reveals that an investment return assumption of 7.50% is not uncommon. Based on Treasury's 'scrutiny,' it seems probable that the other pending applications will suffer a similar fate to Central States." (Jackson Lewis P.C.)
[Opinion] There's No 'Tooth Fairy' for Pension Fund Bailout
"Anger predictably ensued when Central States administrators proposed cuts for 270,000 drivers and retirees as part of their rescue plan.... But the Treasury Department rejected the Central States restructuring and benefit cuts.... The reality, however, is that rejecting the least bad option simply means that the other solutions are worse. The plan's dire finances have not changed. And without reform, pensioners' cuts eventually may be even deeper.... The debate going forward needs to honestly acknowledge the long odds of a congressional bailout for the Central States fund and what can realistically be done to preserve pensions." (StarTribune)
It's Back to the Drawing Board for Multiemployer Pension Reform
"Sweeping solutions are not expected in an election year, particularly one that could change the balance of power in Congress. MPRA critics, including the Pension Rights Center in Washington and AARP, realize their victory in the Central States decision is short-lived, as many troubled multiemployer plans head toward insolvency, along with the Pension Benefit Guaranty Corp.'s multiemployer insurance program itself." (Pensions & Investments)
PBGC to Double Penalties for Failing to Give Notices
"[T]he new maximum amount for noncompliance with the Section 4071 requirements will nearly double, from the current $1,100-per-day penalty to $2,063. The penalty under ERISA Section 4302 will increase from $110 per day to a $275 daily assessment.... A PBGC official ... [said] on May 12 that these penalties are rarely assessed." (Bloomberg BNA)
Threatened Pensions Safe -- for Now
"The Central States decision forestalls pension cuts that would have taken effect this summer, but it does not resolve the problem. Plan administrators say it could be insolvent within a decade.... But the Treasury decision does not settle the matter. The plan could still refile its application to make cuts.... The Obama administration's 2017 budget proposes to solve the problem by raising $15 billion in higher [PBGC] premiums for multiemployer plans, and by giving PBGC the power to set rates without congressional approval." (Mark Miller, via Reuters)
Treasury's Ruling Raises Question of Rescue Plan Process
"[Central States Pension Fund executive director Thomas C. Nyhan said] that although the fund's dealings with Treasury during the review wasn't 'an adversarial process,' it wasn't 'collaborative, either.' He said that despite meeting with Treasury three times and providing the department and the Pension Benefit Guaranty Corporation with 'massive amounts of actuarial data over the many months of their deliberations,' Treasury never told the fund about the department's concerns before the decision." (Bloomberg BNA)
Multiemployer Plan Conundrum: Are Composite Plans the Answer?
"A hypothetical composite multiemployer pension plan could survive severe economic stress through a combination of contribution increases and benefit reductions ... The plan was presumed to be 100 percent funded in 2016, falling to 73 percent funded in 2017 as a consequence of the severe shocks similar to those that defined benefit plans experienced in 2008-2009, and projected to be at 60 percent funding in 15 years.... The analysis found that either of two possible realignment programs would increase the hypothetical plan's funding to 121 percent in 15 years -- slightly above the 120 percent funding requirement." (Bloomberg BNA)
Central States: Rescue Petition Denial Faulty, Avoidable
"Thomas C. Nyhan, executive director and general counsel of the [Central States Pension Fund], challenged the [Treasury] department's conclusions that the multiemployer pension plan's proposal wasn't based on 'reasonable investment assumptions' and that its notices to participants weren't 'understandable to the average plan participant.'... The fund surveyed its participants and found that 73 percent of those responding said the information in the notices was 'clear and easy to understand,' he said. Nyhan said if 'Treasury had told us that they considered the notice to be unsatisfactory, we would have gladly mailed out a revised notice. It clearly didn't take Treasury 224 days to come to that conclusion.' " (Bloomberg BNA)
Pension Plan Funded Status Drops Due to Interest Rate Declines in Q1 2016 (PDF)
"During the first quarter of 2016, the funded status of the model pension plan ... decreased by 4 percentage points: from 83 percent to 79 percent. This decline was the result of a 3 percent asset increase and a 9 percent liability increase during the quarter ... The decrease in the yield curve level during Q1 2016 resulted in a decline in the effective interest rate and, consequently, increased the model pension plan's liability by about 9 percent." (Sibson Consulting)
Treasury Department Letter to Congress on Its Rejection of Central States Application to Reduce Benefits (PDF)
"The Central States plan ... remains severely underfunded and is projected to become insolvent within the next 10 years.... [A]bsent congressional action, by the time the Central States plan becomes insolvent, the [PBGC] multiemployer insurance fund -- which insures part of those benefits -- may itself already be insolvent.... We urge Congress to consider carefully the issues that have emerged ... Finding a balanced solution will require painful choices, but we must work together to preserve the promise of retirement security that these workers have bargained for and earned." (U.S. Department of the Treasury, via Pension Rights Center)
Treasury Special Master Rejects Central States' Plan for Pension Cutbacks
"The decision could dim the chances for multiemployer pension funds to avoid insolvency by slashing benefits. Central States projects that, without the cuts, it will be out of funds by 2026 because it's currently paying out $3.46 for every $1 it takes in. Even under the plan, the fund gave itself a coin-flip's chance of surviving past 2064, according to its proposal." (Bloomberg)
Treasury Rejects Central States Benefit Reductions
"Central States' proposed benefit suspensions 'are not reasonably estimated to allow the plan to avoid insolvency,' Mr. Feinberg said, because Treasury officials considered the plan's 7.5% rate of investment return and entry age assumptions to be unreasonable.... At the time of its application, [the Central States plan] was 53% funded, with $35 billion in liabilities.... If Treasury had approved the application, an estimated two-thirds of the plan's 400,000 participants would have seen their benefits reduced, with nearly 40% seeing cuts of 30% or higher[.]" (Pensions & Investments)
[Opinion] Statement by Central States Pension Fund Regarding Treasury Department's Denial of Proposed Rescue Plan
"Although the decision by our Trustees to file this application under provisions of the Multiemployer Pension Reform Act of 2014 (MPRA) was gut wrenching, we are disappointed with Treasury's decision, as we believe the rescue plan provided the only realistic solution to avoiding insolvency. The Central States Pension Fund Trustees will carefully consider the most appropriate next steps, based on this denial and the final guidance issued by Treasury on April 26." (Central States Pension Fund)
[Opinion] Central States Benefit Reductions Are Probably Inevitable
"The only question is whether the trustees decide to fire themselves and the people now servicing the plan by going directly to the [PBGC] under a distress termination which would require maximum benefit cuts for participants and a lot of work for the PBGC ... or resubmit the application with a later suspension date and bigger benefit cuts that will likely come close to PBGC maximum limits." (Burypensions)
[Official Guidance] Text of Treasury Department Letter to Central States Pension Plan Denying Application to Reduce Benefits Under MPRA (PDF)
10 pages. "As Special Master, appointed by the Secretary, I am writing to notify you of Treasury's decision to deny the Application because the suspension fails to satisfy the statutory criteria for approval of benefit suspensions.... [A] key test for any application under Kline-Miller is whether the proposed benefit suspensions take a plan off the path to insolvency. As described further [in this letter], Treasury finds that the Plan's proposed benefit suspensions are not reasonably estimated to allow the Plan to avoid insolvency.

"Specifically, after reviewing the Application and consulting with PBGC and DOL, Treasury has determined that the suspensions described in the Application fail to satisfy the following three requirements set forth in Kline-Miller:

  • that the proposed benefit suspensions, in the aggregate, be reasonably estimated to achieve, but not materially exceed, the level that is necessary to avoid insolvency, because the investment return and entry age assumptions used for this purpose are not reasonable....
  • that the proposed benefit suspensions be equitably distributed across the participant and beneficiary population....
  • that the notices of proposed benefit suspensions be written so as to be understood by the average plan participant."

(U.S. Department of the Treasury)
$20 Billion Underfunding of Central States Pension Plan May Tie Treasury Department's Hands on MPRA Benefit Suspensions
"In Central States' case, it may not even matter if the participants are in the majority against [the benefit suspension plan].... [MPRA] requires Treasury to determine if the plan in question is a 'systemically important plan' ... one that, absent MPRA suspensions, would be estimated to require more than $1 billion in assistance from the PBGC to support retiree benefits at guarantee levels as a result of the plan's insolvency. Central States is believed to be such a plan. In this case, Treasury would override the participants' vote and implement the suspensions anyway, although it could modify the terms[.]" (Milliman)
Neither DB nor DC: The Composite Plan (PDF)
"Congress may soon consider legislation for a new type of shared-risk multiemployer retirement plan known as a Composite Plan. This design was initially proposed in the NCCMP 2013 Retirement Security Review Commission Report, Solutions not Bailouts... [This article] summarizes key points of the Composite Plan design.... [and] provides an illustration of the ability of a Composite Plan to recover from a severe shock, based on timely, aggressive plan trustee management. Such action would be required under the proposal -- even for a very mature plan, where shocks are more difficult to absorb." (Segal Consulting)
Construction Company Can't Avoid Pension Withdrawal Liability by Acquiring Nonunion Business, Resuming Work
"A multiemployer pension plan was authorized to assess withdrawal liability against a construction company whose parent company soon purchased a nonunion construction company that performed the same type of work for which pension contributions had been made ... [The Tenth Circuit ruled that to hold] otherwise would mean that a construction company could avoid withdrawal liability by terminating its obligation to contribute to a pension fund and then acquiring a nonunion business that resumed the covered work[.]" [Ceco Concrete  v. Centennial State Carpenters Pension Trust, No. 15-1021 (10th Cir. May 3, 2016] (Wolters Kluwer Law & Business)
IRS Rule Turns Away UPS Bid for Benefit Cut Changes
"According to the rules, a multiemployer plan looking to reduce benefits would first have to cut them to the maximum extent permissible for retirees with employers that withdrew from the plan without paying the full withdrawal liability, or in Tier 1. Retirees with employers with make-whole agreements (Tier 3) could face cuts, but they would have to be equal to or less than decreases for all other plan participants (Tier 2).... The rules didn't mention UPS by name, but address its make-whole agreement after it left the Central States fund in 2007 ... UPS [had] argued in written comments and at a hearing that benefits in tiers 1 and 2 would have to be cut to the maximum extent possible before those benefits in Tier 3 could be cut." (Bloomberg BNA)
[Official Guidance] Text of IRS Final Regs: Additional Limitation on Suspension of Benefits Applicable to Certain Pension Plans Under MPRA
19 pages. "One specific limitation governs the application of a suspension of benefits under any plan that includes benefits directly attributable to a participant's service with any employer that has withdrawn from the plan in a complete withdrawal, paid its full withdrawal liability, and, pursuant to a collective bargaining agreement, assumed liability for providing benefits to participants and beneficiaries equal to any benefits for such participants and beneficiaries reduced as a result of the financial status of the plan. This document contains final regulations that provide guidance relating to this specific limitation. These regulations affect active, retired, and deferred vested participants and beneficiaries under any such multiemployer plan in critical and declining status as well as employers contributing to, and sponsors and administrators of, those plans." (Internal Revenue Service [IRS])
[Guidance Overview] Treasury Finalizes Multiemployer Benefit Suspension Regulations (PDF)
"[T]he final rule: ...[C]larifies that individual-level contingencies (such as retirement) can be considered for those who had not started benefits before the effective date of the suspension.... [Adds] a floor of 2 percent of the periodic payment determined before the proposed reduction ... Details the steps that must be taken to locate participants whose notices are returned as undeliverable ... The final regulation also adds a new rule that, in appropriate circumstances ... allows a plan sponsor that has withdrawn an application to submit a revised application for suspension that will be subject to a different review process." (Xerox HR Services)
[Opinion] Before Teamsters Negotiate Benefit Cuts, They Should Investigate Reason for Pension Plan Failures
"We, as a nation, have the resources to forensically investigate the reasons pensions fail to provide retirement benefits promised workers. To date, despite the widespread failures, no one seems to care. Forensic investigations of failed plans will both improve the management of existing pensions, as well as signal to Wall Street and other wrongdoers that those who contribute to the demise of a pension will be held accountable." (Edward Siedle, in Forbes)
Kroger, UPS Challenge Central States Reduction Plan
"Current and former plan participants of Kroger Co., Cincinnati, last week sued the $17.8 billion Teamsters Central States over the rescue plan.... The Teamsters union [had] negotiated a proposal to remove Kroger participants from Central States and create a new plan for Kroger employees, with the company agreeing to absorb the increased withdrawal liability, according to the federal court complaint. Because Central States trustees 'flatly refused to consider' after deliberating for just five days, the plaintiffs are asking the court to order reconsideration of the proposal, to appoint an independent fiduciary to judge the idea and to negotiate an arrangement with Kroger." (Pensions & Investments)
UPS Warns of $3.8 Billion Cost If U.S. Backs Pension Benefit Cut
"The cost would be triggered if the U.S. Treasury Department approves benefit cuts to protect the solvency of the Central States Pension Fund, UPS executives said Thursday. UPS pulled out of the fund in 2007 but agreed to make up any losses its remaining members experienced. The world's largest package-delivery company may have to record a charge of $3.2 billion to $3.8 billion if the government approves the benefit cuts, executives said in an earnings conference call. UPS plans to oppose such a move by the Treasury." (Bloomberg)
Treasury Issues Final MPRA Suspension Regulations
"The final regulations make changes and clarifications to many specific provisions of the proposed regulations. Examples include: [1] Addressing numerous actuarial assumption and projection issues; [2] Clarifying that the plan must pay for actuarial, legal, and communication expenses of the retiree representative; [3] Adopting a new procedure permitting trustees, with the Treasury's approval, to withdraw and resubmit a revised suspension application; [4] Adding new procedural requirements for the participant vote. The final regulations do not change the statutory requirement that those who do not vote are counted as voting in support of a suspension." (Segal Consulting)
Senate Democrats Urge Scrutiny of Central States Rescue Plan (PDF)
"The entire Democratic Party Senate caucus has urged the Treasury Department to closely scrutinize the Central States pension fund's rescue proposal.... The senators wrote that the fund's retirees 'contributed to their pensions over the course of many years -- making the sacrifices of giving up better pay or improved benefits, or even staying in a physically exhausting job that took them away from their families -- so they could earn a pension that they believed could never be taken away.' " (BNA Pension & Benefits Reporter, via Pension Rights Center)
Kroger Workers, Retirees Sue Failing Multiemployer Pension Fund, Trustees
"A group of participants in the Central States Pension Fund is suing the fund, its administrators and trustees for breach of fiduciary duty. The move follows a nationwide movement of retirees who have taken to protesting the troubled fund, which is set to run out of money in 2026. The plaintiffs are current and retired warehouse workers at Kroger Co., hailing from Michigan, Illinois and Kansas, whose retirement funds are invested in the Rosemont, Illinois-based Central States Pension Fund." (
[Official Guidance] Text of IRS Final Regs: Suspension of Benefits Under the Multiemployer Pension Reform Act of 2014
133 pages. ""The preamble to the June 2015 temporary regulations states that it is expected that no application proposing a benefit suspension will be approved prior to the issuance of final regulations, and that, if a plan sponsor chooses to submit an application for approval of a proposed benefit suspension before the issuance of final regulations, then the plan sponsor may need to revise the proposed suspension (and potentially the related notices to plan participants) or supplement the application to take into account any differences in the final regulations ... [T]he provisions of the June 2015 proposed regulations and the September 2015 proposed regulations ... are adopted by this Treasury decision, subject to certain changes ... This Treasury decision also removes the temporary regulations under 432(e)(9) that were published in June 2015 and September 2015. This Treasury decision does not contain final action on the February 2016 regulations....

"[T]the final regulations clarify that a suspension can take into account individual-level contingencies (such as retirement, death, or disability) for individuals who have not commenced benefits before the effective date of the suspension.... These final regulations define the term plan sponsor to mean the association, committee, joint board of trustees, or other similar group of representatives of the parties that establishes or maintains the multiemployer plan. However, in the case of a plan described in section 404(c), or a continuation of such a plan, the term plan sponsor means the association of employers that is the employer settlor of the plan ...

"The final regulations implement the requirement that a retiree representative must be selected for a plan with 10,000 or more participants. For purposes of determining whether a plan has 10,000 or more participants, the final regulations provide that the number of participants is the number reported on the most recently filed Form 5500... The final regulations also provide that the plan sponsor must select the retiree representative at least 60 days before the plan sponsor submits an application to suspend benefits and that the retiree representative must be a plan participant who is in pay status and may or may not be a plan trustee.... The final regulations require that, upon request, the plan sponsor must promptly provide the retiree representative with relevant information (such as plan documents and data) that is reasonably necessary to enable the retiree representative to perform the retiree representative's role, which includes, for example, the retiree representative's attendance at trustee meetings at which the suspension design is being developed.... The final regulations clarify that the plan must pay other reasonable expenses incurred by the retiree representative, such as any reasonable expenses incurred in communicating with the retired and deferred vested participants and beneficiaries of the plan about the proposed suspension ...

"Under the final regulations, a plan sponsor may not suspend benefits unless the plan sponsor makes initial and annual determinations that the plan is projected to become insolvent unless benefits are suspended, although all reasonable measures to avoid insolvency have been taken. These determinations are based on the non-exclusive list of factors described in section 432(e)(9)(C)(ii).... The final regulations provide that the plan sponsor must maintain a written record of its annual determinations in order to satisfy the annual plan sponsor determinations requirement....

"The final regulations contain new rules to clarify when different groups of participants and beneficiaries are treated as separate categories or groups for purposes of applying the equitable distribution requirement in the case of a proposed suspension of benefits under which an individual's benefits after suspension are calculated under a new benefit formula (rather than by reference to an individual's benefits before suspension)....

"The final regulations prescribe rules implementing the statutory notice requirements in section 432(e)(9)(F) that are generally the same as the rules set forth in the 2015 regulations.... The final regulations generally adopt the provisions of the 2015 regulations under which the plan sponsor of a plan in critical and declining status for a plan year that seeks to suspend benefits must submit an application for approval of the proposed suspension of benefits to the Treasury Department.... The final regulations provide that a complete application will be deemed approved unless, within 225 days after a complete application is received, the Treasury Department notifies the plan sponsor that its application does not satisfy one or more of the requirements for approval.... An application must be submitted electronically in a searchable format. The final regulations provide that, after receiving a submission, the plan sponsor will be notified within two business days whether the submission constitutes a complete application....

"The final regulations provide that, in any case in which a suspension of benefits with respect to a plan is made in combination with a partition of the plan under section 4233 of ERISA, the suspension of benefits is not permitted to take effect prior to the effective date of the partition....

[T]hese final regulations clarify that eligible voters include terminated vested participants and retirees (but not alternate payees).... These final regulations set forth rules regarding the ballot package that is sent to eligible voters and the plan sponsor's responsibilities relating to ballots and related communications to participants and beneficiaries....

These regulations are effective on [April 28, 2016, the date they are to be published in the Federal Register]."

(Internal Revenue Service [IRS])

[Official Guidance] Text of IRS Rev. Proc 2016-27: Application Procedures for Approval of Benefit Suspensions for Certain Multiemployer Defined Benefit Pension Plans Under Section 432(e)(9) (PDF)
32 pages. "This revenue procedure contains revised procedures for applications for a suspension of benefits under a multiemployer defined benefit pension plan that is in critical and declining status under Section 432(e)(9). These procedures replace the procedures set forth in Rev. Proc. 2015- 34, 2015- 27 I.R.B. 1218.

"The procedures set forth in this revenue procedure must be followed for applications submitted on or after April 26, 2016....

"The model notice in Appendix A of this revenue procedure replaces the model notice attached to Rev. Proc. 2015-34 for notices with respect to applications submitted under this revenue procedure.... As noted in Rev. Proc. 2015-34, plan sponsors that submit an application under that revenue procedure may need to revise the proposed suspension or supplement the application to take into account the final regulations and this revenue procedure."

(Internal Revenue Service [IRS])

[Official Guidance] Text of Treasury Department Announcement of Multiemployer Pension Plan Application to Reduce Benefits
"The Board of Trustees of the Iron Workers Local Union 16 Pension Fund, a multiemployer pension plan, has submitted an application to Treasury to reduce benefits under the plan in accordance with the Multiemployer Pension Reform Act of 2014 (MPRA). The purpose of this notice is to announce that the application ... has been published on the website of the Department of the Treasury ... and to request public comments on the application from interested parties, including contributing employers, employee organizations, and participants and beneficiaries of the Iron Workers Local Union 16 Pension Fund. Comments must be received by June 9, 2016." (U.S. Department of the Treasury)
Iron Workers Local 16 Pension Fund Application for Benefit Suspension
"The Iron Workers Local Union 16 Pension Fund application proposing benefit suspensions [the full text of which is available at the linked page] ... is currently being reviewed and the review is expected to take several months. IW Local 16's representative has advised [Treasury] that individualized participant notices were sent via first class mail at end of March 2016." (U.S. Department of the Treasury)
Sun Capital Decision May Affect Structuring of Private Investment Funds
"Although the Sun Capital decision was limited to multiemployer pension plan liability, and was likely motivated in part by policy considerations unique to multiemployer pension plans, the legal principles ... may extend to other pension liability (e.g., unfunded liability under a traditional defined benefit pension plan), as well as the application of the coverage and discrimination rules applicable to 401(k) and other defined contribution plans that are dependent upon 'controlled group' status." (Goodwin Procter)
[Guidance Overview] 2015 Annual Funding Notice: PBGC Filing Information
"Multiemployer plans may continue to file the 2015 AFN and other notices -- 'zone' notices, PBGC notices for plans 'avoiding yellow' or 'not electing early red' as added by the Multiemployer Pension Reform Act of 2014, and notices of amortization extension applications under Section 431 of the Internal Revenue Code (together, Other Notices) -- by e-mail ... or mail ... Alternatively, multiemployer plans may, but are not required to, file the AFNs and Other Notices with PBGC through the new e-filing portal, launched by the PBGC in December of last year." (Segal Consulting)

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