Are you considering purchasing an existing construction company? Congratulations, we hope you have your hard hat on and are ready for some (figuratively) heavy lifting. Whether this is part of your long-term plan, or you’re already deep into the process, there are a lot of critical considerations you need to make before you take the plunge. One of the most overlooked factors: unfunded pension liability. Don’t fall into the trap of being unprepared when it’s negotiation time.

Why are unfunded pension liabilities my problem now?

You know the saying once you own it, you own all of it – the good, the bad, and the ugly? You need a clear financial picture of what you’re walking into. There’s no room for surprise costs popping up, and unknown unfunded liabilities can quickly become your responsibility. With nearly 40 percent of all multiemployer defined benefit (DB) plans operating in the construction industry, you probably already know these plans tend to be poorly funded. A 2020 federal study even revealed that the multiemployer insurance program is highly likely to become insolvent by 2025.

Ask yourself, is this an asset or a stock sale?

If it’s an asset sale, successor liability law typically states that the buyer won’t assume the seller’s corporate liabilities. Usually in this type of sale, the withdrawal liability stays with the seller, who can then dissolve. However, in certain cases, courts have found successor liability for the buyer in an asset acquisition.

If it’s a stock sale, a withdrawal from a multiemployer pension plan typically isn’t triggered, as long as there is no interruption to the obligation of the sold entity to contribute to the plan.

What can you anticipate from the seller?

It’s not uncommon for sellers to categorize withdrawal liability as irrelevant to deal pricing. But certain situations arise where liability can be triggered against the wishes of the employer, or without any affirmative action, such as a union decertification, a significant business downturn, or an asset sale. It’s always a best practice to ask the seller to go back to the unions and find out what the withdrawal liability is in advance. Once you have this insight, get to negotiating. Perhaps you suggest that the seller uses some of the sale proceeds to pay off the withdrawal liability so you get a fresh start, or you might suggest a reduced selling price.

How can buyers protect themselves?

Because a company’s financial statements are not required to disclose the amount of pension plan liability in the event of withdrawal, buyers often overlook the amount of any such potential liability when setting the purchase price at the bid stage. This can wind up being a huge mistake. Remember, you want the price of the sale to suitably account for potential liability. If a recent estimate of the company’s potential withdrawal liability is unavailable, collect information so an expert can estimate withdrawal liability exposure. Protect yourself by reviewing the plan’s level of funding, a detailed history of the target company’s contributions to the plan, and information about the company’s contributing plan members. It’s also critical to find out the number of unions the company participates in.

What other steps should I take?

Keep in mind there are certain exceptions for construction employers, and the recent American Rescue Plan Act provided funding for some of the severely underfunded pension plans which may relinquish the liability for some employers. Projections estimate that qualified plans will receive approximately $86 billion in assistance. The regulations are expected in early July, you can stay up to date here. Ultimately, every union contract is different. Consider special purchase agreement provisions: an agreement that sellers will pay withdrawal liability assessments, broad indemnification rights, or purchase price adjustments. It might make sense to establish an escrow account to cover potential liability. Most importantly, always consult with a team of financial professionals and legal representatives to navigate this issue so you set your company up for success.

Source: TaxExecutive, Congressional Research Service, PBGC