Employee Benefits Law Report

Archives: Benefits Issues Related to Mergers and Acquisitions

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Could’ve, would’ve. What should a fiduciary do? Fourth Circuit decision could spell more uncertainty for retirement plan fiduciaries.

By Deb Boiarsky on

Coming on the heels of the U.S. Supreme Court’s Dudenhoeffer decision, which eliminated a pro-fiduciary presumption with respect to company stock holdings in qualified retirement plans, the 4th Circuit issued a decision last week that could cause even more unrest for plan fiduciaries. The case, Tatum v. RJR Pension Investment Committee, et al., represents a potential elevation of the standard “prudent fiduciary” rule as it had been widely understood it to govern ERISA retirement plans.

In short, the 4th Circuit in this case purports to require a fiduciary to determine whether a prudent fiduciary more likely than not would …

First Circuit to Potential Business Acquirers: Buyer Beware…of Underfunded Pension Liabilities

By Greg Daugherty on

We frequently encounter employers who are excited to purchase an underperforming company with the belief that it can make that company profitable.  While we as ERISA counsel never want to rain on anyone’s parade, we always encourage these employers to do their due diligence with respect to the company’s employee benefits plans.  The last thing an acquirer wants is to learn that it is responsible for a previously unknown pension liability of the acquired entity.  Careful planning can help minimize the risk of such liability.

A recent First Circuit decision involving a private equity fund’s investment in a portfolio company …

Ohio Supreme Court Partially Reverses its Acordia Non-Compete Decision

By Porter Wright on

This past May, we reported that the Ohio Supreme Court ruled in Acordia of Ohio, L.L.C. v. Fishel that following a merger, the surviving company may not be able to enforce employees’ non-compete agreements, where the agreements failed to contain an assignment clause, and the time period of the employees’ non-competes began to run as of the date of the merger. The Court reconsidered its decision, and issued a new decision today. Upon quick review, the bottom line seems to be that the Court has decided that it mis-read earlier precedent regarding corporate mergers. Here is part of the …

Workforce Due Diligence Considerations When Purchasing a Company

By Porter Wright on

While in the heat of negotiating, dealmakers can overlook potentially costly exposure in a variety of areas, such as employee benefits. As explained by Becca Kopp in our sister blog, Employer Law Report, in Ohio, buyers may incur unanticipated liability for workers’ compensation obligations, regardless of what is set forth in the documentation. This may be the case where the deal is negotiated between two parties, and even where the buyer is acquiring through an intermediary bank or receivership. Accordingly, buyers are cautioned to make sure their due diligence related to employees is thorough.…

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