PBGC Asserting Novel Claim Under ERISA Section 4068 and 31 U.S.C. Section 3713

[WestCoast]

Company A ceased operations in 2010. No bankrupcty, just an assignment for the benefit of creditors. Assets liquidated, secured creditors paid. Nothing left over for unsecured creditors.

Company A had a defined benefit pension plan. After Company A ceased operations, no provision was made for terminating the pension plan or continuing its minimum funding . . . because Company A had no assets and no staff.

PBGC placed Company A's pension plan into PBGC trusteeship in late 2012. And, per same, used the date in 2010 of the Company's WARN Act notice to employees as the date of the plan's termination.

Companies B, C and D were in Company A's controlled group as of the date of the plan's termination. Some of their assets were disposed of in the normal course of operations between 2010 and 2012.

PBGC has assessed B, C and D, as controlled group members, with joint and several liability under ERISA section 4062 for the pension plan's underfunding, minimum contributions and PBGC premiusm.

So far, so good in the sense of the typical PBGC process.

The PBGC has also asserted a claim that, per ERISA section 4068, the federal tax priority rules of 31 U.S.C. section 3713 apply and that B, C and D must pay the PBGC first with the proceeds of any liquidation or similar action with regard to their assets . . . and that company officers or other fiduciaries of B, C and D may be personally liable to PBGC for same. And, the PBGC also asserts that this liability extends all the way back to the 2010 date of the pension plan's deemed termination (and not just for the period on and after the 2012 date on which the PBGC placed the pension plan into trusteeship).

Has anyone come across a similar PBGC tactic using ERISA section 4068's incorporation of 31 U.S.C. section 3713 to go after controlled group member companies and, more importantly, officers, shareholders, and fiduciaries of such members re the disposition of their assets and the assertion of personal liability for a pension plan's funding?

I have found nothing of note in the usual commentary and case law sources.

Thanks.