Author: Emily Kile-Maxwell

Emily Kile-Maxwell litigates complex commercial and employee benefits (ERISA) disputes through all phases of litigation, including on appeal. Emily represents commercial clients, benefit plans and plan fiduciaries, third-party administrators, and insurance companies in disputes and litigation, and also advises clients on benefit claim administration, plan administration and plan design.

Seventh Circuit Splits with Sister Circuits, Rules Employers Entitled to Full Credit for Prior Partial Withdrawal Liability

On September 17, 2026, the US Court of Appeals for the Seventh Circuit handed employers a significant win in Central States, Southeast and Southwest Areas Pension Fund v. Consumers Concrete Corp., No. 25-1765, affirming a district court ruling that rejected a multiemployer pension fund’s $23 million withdrawal liability assessment. The decision deepens a growing disagreement among the federal circuits over how to implement the standards under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA) for applying an employer’s credit for a prior partial withdrawal liability assessment against the later calculation of the employer’s liability for a complete withdrawal, and it carries real financial consequences for employers that contribute to multiemployer pension plans.

Case Background and Holding

Consumers Concrete Corp. was a contributing employer to the Central States, Southeast and Southwest Areas Pension Fund. In 2017, Consumers Concrete partially withdrew from the Fund and was assessed approximately $11.3 million in partial withdrawal liability. Two years later, in 2019, the company completely withdrew from the Fund and was assessed roughly $22.9 million in complete withdrawal liability.

Continue reading “Seventh Circuit Splits with Sister Circuits, Rules Employers Entitled to Full Credit for Prior Partial Withdrawal Liability”

ERISA Litigation Roundup: Supreme Court Unanimously Rules Multiemployer Pension Plans May Use Post-Measurement-Date Actuarial Assumptions to Calculate Withdrawal Liability

On May 21, 2026, the US Supreme Court issued a unanimous decision in M & K Employee Solutions, LLC v. Trustees of the IAM National Pension Fund, No. 23-1209, resolving a circuit split on a question of enormous financial consequence to employers participating in multiemployer pension plans (MPPs): whether a plan’s actuary must adopt its actuarial assumptions for purposes of withdrawal liability calculations on or before the “measurement date” for those calculations, or whether it may instead select assumptions after that date. In an opinion authored by Justice Jackson, the Court held that ERISA does not require actuarial assumptions to be adopted “as of” the measurement date, but stressed that these actuarial assumptions must still reflect the actuary’s “best estimate of anticipated experience under the plan,” which generally requires that the assumptions reflect information about the plan’s conditions as they stood on the measurement date.

Background

Under ERISA and the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), an employer that withdraws from an underfunded MPP must pay “withdrawal liability,” which is its proportionate share of the plan’s unfunded vested benefits (UVBs). The statute requires this liability to be calculated “as of” the last day of the plan year preceding the employer’s withdrawal, or the “measurement date.” Calculating UVBs requires actuarial assumptions about the plan and its future benefit obligations, most notably a discount rate that converts the plan’s future liabilities to present-day dollars. The discount rate dramatically affects the total withdrawal liability figure.

Continue reading “ERISA Litigation Roundup: Supreme Court Unanimously Rules Multiemployer Pension Plans May Use Post-Measurement-Date Actuarial Assumptions to Calculate Withdrawal Liability”

Plan Fiduciaries Continue to Defeat BlackRock Target Date Fund Class Actions

A series of cases against fiduciaries of 401(k) plans that offer BlackRock Target Date Funds (TDFs) have been dismissed by district courts in recent months. In three recent cases, the district courts held that plaintiffs failed to allege any facts about the plan fiduciaries’ process for selecting and monitoring the BlackRock TDFs and that plaintiffs’ reliance on the BlackRock TDFs’ alleged underperformance alone was insufficient to state a claim for breach of fiduciary duty.

Continue reading “Plan Fiduciaries Continue to Defeat BlackRock Target Date Fund Class Actions”

PBGC Announces Proposed Rule on Interest Rate Assumptions for Multiemployer Plan Withdrawal Liability

On October 14, 2022, the Pension Benefit Guaranty Corporation (PBGC) proposed a new regulation under ERISA Section 4213(a)(2) setting forth actuarial assumptions that a multiemployer pension plan may use in calculating an employer’s withdrawal liability. A PDF of the proposed rule can be found here.

Background on Withdrawal Liability

Under ERISA § 4213(c), an employer withdrawing from a multiemployer pension plan must pay the plan its proportional share of the plan’s unfunded vested benefits, which is the difference between the present value of the plan’s nonforfeitable vested benefits and the value of the plan’s assets. The plan’s actuary must employ a variety of assumptions to calculate the withdrawing employer’s liability, such as how long employees will work and how long retirees will live (both of which affect the value of the benefits the plan must pay in the future).

Continue reading “PBGC Announces Proposed Rule on Interest Rate Assumptions for Multiemployer Plan Withdrawal Liability”

ERISA Litigation Roundup: Seventh Circuit Confirms DOL’s Broad Subpoena Power

 In Walsh v. Alight Solutions, LLC, — F.4th —, 2022 WL 3334450 (7th Cir. Aug. 12, 2022), the Seventh Circuit affirmed a district court order requiring Alight Solutions to produce documents in response to a Department of Labor (“DOL”) subpoena, confirming that the DOL has broad authority to issue subpoenas to investigate possible ERISA violations, even against non-fiduciaries.

Alight provides recordkeeping services for employers who sponsor ERISA-governed health and welfare and retirement plans. In 2019, the DOL began investigating Alight on the basis of alleged cybersecurity breaches that resulted in unauthorized distributions of plan benefits from plans for which Alight provides recordkeeping services. The DOL served Alight with an administrative subpoena duces tecum requesting 32 categories of documents dating back to 2015.

Continue reading “ERISA Litigation Roundup: Seventh Circuit Confirms DOL’s Broad Subpoena Power”

Federal District Court Invalidates Some Surprise Billing Rules: What It Means for the No Surprises Act

On February 23, 2022, the United States District Court for the Eastern District of Texas invalidated portions of Part II of the interim final rule (“IFR”) issued by the U.S. Departments of Health and Human Services, Labor, and Treasury (“Tri-Agencies”), implementing the dispute resolution provisions of the No Surprises Act (“NSA”).  While the ruling in the case, Texas Medical Association v. U.S. Department of Health & Human Services, may impact medical plan costs, it does not substantively affect the consumer protections against surprise medical billing added by the NSA, which took effect in 2022.

Continue reading “Federal District Court Invalidates Some Surprise Billing Rules: What It Means for the No Surprises Act”

Thinking ESOPs: Court Rejects DOL Claims of ESOP Overpayment

The board of directors of Bowers + Kubota Consulting, Inc. recently won an employee stock ownership plan (ESOP) fiduciary/breach case brought against them by the Department of Labor. See Walsh v. Bowers, et al., No. 1:18-cv-00155-SOM-WRP (D. Haw. Sept. 17, 2021). After a full trial on the merits, the district-court judge entered judgment in favor of the defendants, largely based on the court’s rejection of the DOL’s critiques of the valuation upon which the trustee relied. What is perhaps most interesting about the court’s decision is the contrast between the discussion in this case of fundamental ERISA and valuation concepts, on the one hand, and the discussion of fundamental ERISA and valuation concepts in two other cases in which courts entered judgment against the defendants.

Continue reading “Thinking ESOPs: Court Rejects DOL Claims of ESOP Overpayment”

ERISA Litigation Roundup: The DOL Determines That Audio Recordings Must Be Produced Under ERISA’s Claim Regulations

On June 14, 2021, the Department of Labor (DOL) issued an information letter stating that plan fiduciaries have a duty under ERISA’s claim regulations to produce upon request recordings or transcripts of phone calls between benefit claimants and plan representatives regarding their benefit claims. The DOL letter is a call for plan administrators to revisit and potentially refine their processes for recording and storing such conversations.

Continue reading “ERISA Litigation Roundup: The DOL Determines That Audio Recordings Must Be Produced Under ERISA’s Claim Regulations”

ERISA Litigation Roundup: Federal District Court Finds ERISA Plan Participants Lack Standing to Challenge Cross-Plan Offsetting

A federal judge in the U.S. District Court for the District of Minnesota dismissed breach of fiduciary duty claims against UnitedHealth Group, holding that participants in ERISA-governed, employer-sponsored health plans lack standing to challenge UnitedHealth Group’s practice of cross-plan offsetting because they have not been denied any benefits and have not been individually injured. The decision underscores the Supreme Court’s ruling that plaintiffs must demonstrate individual injury in order to assert breach of fiduciary duty claims under ERISA.

Continue reading “ERISA Litigation Roundup: Federal District Court Finds ERISA Plan Participants Lack Standing to Challenge Cross-Plan Offsetting”

©2026 Faegre Drinker Biddle & Reath LLP. All Rights Reserved. Attorney Advertising.
Privacy Policy