GCIU-Employer Retirement Fund, et al. v. MNG Enterprises, Inc., dba Digital First Media

There is a split between the Ninth and Sixth Circuits about whether contribution history can transfer from a predecessor to its successor for purposes of withdrawal liability. Two newspapers were purchased in asset sales in 2006 and 2007, and the GCIU-Employer Retirement Fund included their contribution histories in the withdrawal assessments of their purchasers after the purchasers completely withdrew in 2013 and 2014. Finding notice of potential withdrawal liability and substantial continuation of the newspapers’ operations, the Arbitrator and the District Court upheld the inclusion of the contribution histories, citing to Ninth Circuit successor cases. Their holdings were consistent with Sofco Erectors, Inc. v. Trs. Of Ohio, Operating Eng’rs Pension Fund, 15 F.4th 407 (6th Cir. 2021), which held a predecessor’s contribution history was properly included in its successor’s withdrawal assessment. The Ninth Circuit, ignoring Sofco, overturned the District Court, finding that the dates of the asset sales rather than the dates of the withdrawals were the relevant dates for determining successorship and the equitable inclusion of contribution history. GCIUEmployer Ret. Fund v. MNG Enters., 51 F.4th 1092, 1101 (2022). The Question Presented is: Whether a predecessor’s contribution history is properly included in the withdrawal liability assessments of its successor.