Philip J. Gutwein II, Author at Spotlight on Benefits

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.

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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.

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Preventing an ERISA Litigation Outbreak After COVID-19 – Part 1: ESOPs

In addition to raising a host of regulatory issues for employee benefit plans, including compliance with the Coronavirus Aid, Relief and Economic Security (CARES) Act, the COVID-19 pandemic is likely to cause a sharp rise in ERISA litigation in the coming months. Faegre Drinker’s ERISA litigation team will be issuing a series of alerts designed to help clients navigate the fiduciary and plan liability issues associated with COVID-19. Part One of our series provides helpful guidance for ESOP fiduciaries carrying out their duties during this uncertain time.

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