Amicus Curiae Brief — M & K Employee Solutions, LLC, et al., Petitioners v. Trustees of the IAM National Pension Fund

No. 23-1209

IN THE

Supreme Court of the United States

___________

M & K EMPLOYEE SOLUTIONS, LLC, et al.,

v.

Petitioners,

TRUSTEES OF THE IAM NATIONAL PENSION FUND,

Respondent.

___________

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

___________

BRIEF FOR AMICUS CURIAE

HR POLICY ASSOCIATION

IN SUPPORT OF PETITIONERS

___________

ERIC D. FIELD

LITTLER MENDELSON, P.C.

815 Connecticut Ave., N.W.

Washington, D.C. 20006

(202) 772-2539

efield@littler.com

SARAH BRYAN FASK

Counsel of Record

LITTLER MENDELSON, P.C.

1601 Cherry Street

Suite 1400

Philadelphia, PA 19102

(267) 402-3070

sfask@littler.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE............................ 1

SUMMARY OF THE ARGUMENT ........................... 3

ARGUMENT .............................................................. 5

I. AFTER CONCRETE PIPE, MULTIEMPLOYER PENSION PLANS AND

THEIR ACTUARIES HAVE

FREQUENTLY CALCULATED

WITHDRAWAL LIABILITY

INCONSISTENT WITH ERISA’S

PLAIN LANGUAGE ........................................ 6

A. Actuaries manipulate the interest

rates used to calculate an employer’s

withdrawal liability, in direct

violation of ERISA. ..................................... 7

B. Multiemployer plans and their

actuaries attempt to assess

withdrawal liability when no

withdrawal (as defined by ERISA)

occurred. ................................................... 11

C. Multiemployer plans and their

actuaries violate ERISA by

misidentifying the highest

contribution rate when calculating

an employer’s withdrawal liability. ......... 13

ii

D. Actuaries implement their own

policy preferences when calculating

an employer’s withdrawal liability. ......... 14

II. UNCERTAINTY IN CALCULATING

AN EMPLOYER’S WITHDRAWAL

LIABILITY FRUSTRATES THE

PRIMARY PURPOSE OF ERISA—TO

CONTINUE AND MAINTAIN

VOLUNTARY PENSION PLANS................. 17

CONCLUSION ......................................................... 21

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ace-Saginaw Paving Company v.

Operating Engineers Local 324

Pension Fund,

No. 24-1288, ____ F.4th _____, 2025

WL 2238023 (6th Cir. 2025) .......................... 14, 15

Allied Painting & Decorating, Inc. v.

Int’l Painters & Allied Trades Indus.

Pension Fund,

107 F.4th 190 (3rd Cir. 2024) ................................ 4

Board of Trustees v.

Eberhard Foods, Inc.,

831 F.2d 1258 (6th Cir. 1987) ................................ 8

Caesars v. Local 68 Operating Engineers

Pension Fund,

932 F.3d 91 (3d. Cir. 2019) .......................... 3, 4, 12

Cent. States v. Event Media, Inc.,

135 F.4th 529 (7th Cir. 2025) ........................ 13, 14

Chicago Truck Drivers, Helpers and

Warehouse Workers Union

(Independent) Pension Fund v.

CPC Logistics, Inc.,

698 F.3d 346 (7th Cir. 2012) .................................. 6

iv

Concrete Pipe & Prods. of Cal., Inc. v.

Constr. Laborers Pension Tr. for S.

Cal.,

508 U.S. 602 (1993) .......................... 5–7, 15, 16, 20

Cyan, Inc. v.

Beaver Cty. Emps. Ret. Fund,

583 U.S. 416 (2018) ................................................ 4

GCIU-Employer Retirement Fund v.

MNG Enterprises, Inc.,

51 F.4th 1092 (9th Cir. 2022) .................... 7, 10, 11

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782 (2014) ................................................ 4

National Retirement Fund v. Metz,

946 F.3d 146 (2nd Cir. 2019) ......................... 16, 20

Rodriguez v. United States,

480 U.S. 522 (1987) .............................................. 15

Sofco Erectors, Inc. v. Trs. Of the Ohio

Operating Eng’rs Pension Fund,

15 F.4th 407 (6th Cir. 2021) .................... 4, 7, 8, 10

UMW 1974 Pension Plan v.

Energy West Mining Co.,

39 F.4th 730 (D.C. Cir. 2022) ...................... 7, 9, 10

Statutes

29 U.S.C. § 1001a(c)(2) .................................... 3, 12, 18

29 U.S.C. § 1085(g)(3)(A)........................................... 13

29 U.S.C. § 1302(a)(1) ........................................... 3, 18

v

29 U.S.C. § 1391 ........................................................ 17

29 U.S.C. § 1391(b) ...................................................... 4

29 U.S.C. § 1393(a)(1) ............................................... 10

29 U.S.C. § 1399(c)(1)(C)(i)(II) .................................. 13

Other Authorities

Emp. Benefits Sec. Admin., U.S. Dep’t

of Labor, Private Pension Plan

Bulletin Historical Tables and

Graphs 1975-2022 (September 2024) .................. 19

IN THE

Supreme Court of the United States

_________

No. 23-1209

_________

M & K EMPLOYEE SOLUTIONS, LLC, et al.,

v.

Petitioners,

TRUSTEES OF THE IAM NATIONAL PENSION FUND,

Respondent.

_________

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

_________

BRIEF FOR AMICUS CURIAE

HR POLICY ASSOCIATION

IN SUPPORT OF PETITIONERS

_________

INTEREST OF AMICUS CURIAE

Amicus curiae, the HR Policy Association (HRPA),

files this brief in support of petitioners M & K

Employee Solutions, LLC, Ohio Magnetics, Inc.,

Phillips Liquidating Trust, and Toyota Logistics

Services, Inc. (collectively, “Petitioners”).1 HRPA is a

public-policy advocacy organization that represents

the most senior human resources officers in more than

1 No counsel for a party authored this brief in whole or in part.

No person other than Amicus curiae, its members, or its counsel

made a monetary contribution to this brief’s preparation or

submission.

2

400 of the largest corporations in the United States

and globally. Collectively, these companies employ

more than 10 million employees in the United States

and 20 million employees worldwide. HRPA’s member

companies are committed to ensuring that laws and

policies affecting the workplace are sound, practical,

and responsive to the needs of the modern economy.

Many of HRPA’s members participate (or

participated) in one or more multiemployer pension

plans. Some of HRPA’s members have withdrawn

from a multiemployer pension plan and are awaiting

a withdrawal liability assessment. Other of HRPA’s

members have withdrawn from a multiemployer

pension plan and are currently challenging an

inflated withdrawal liability assessment. Thus,

because this case is about determining withdrawal

liability consistent with the statute (and not the

whims of an actuary, who may prioritize maximizing

withdrawal liability over compliance with the plain

language of the statute), HRPA’s members have a

significant stake in the outcome of this case.

Amicus

is

well-suited

to

address

these

considerations and the importance of the issues

beyond the immediate concerns of the parties to the

case. HRPA files this brief to assist the Court in

understanding the real-world consequences of the D.C.

Circuit’s decision and to underscore a trend seen

among actuaries since this Court’s decision in

Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers

Pension Tr. for S. Cal., 508 U.S. 602 (1993).

3

SUMMARY OF THE ARGUMENT

The first enumerated purpose of Title IV of the

Employee Retirement Income Security Act (ERISA) is

“to encourage the continuation and maintenance of

voluntary private pension plans for the benefit of their

participants.” 29 U.S.C. § 1302(a)(1). See also 29

U.S.C. § 1001a(c)(2). Because the establishment and

continuation of private pension plans is voluntary,

unpredictable decisions by a plan or its actuaries that

inflate a participating employer’s liability on a

moment’s notice (and are beyond the scope of ERISA’s

authorization) is inapposite to the goal of maintaining

voluntary

pension

plans.

Rather,

such

unpredictability only encourages employers to avoid

participation in private pension plans. Accordingly,

neither this Court, nor any court, should defer to

assumptions selected by a multiemployer pension

plan’s actuary when such assumptions are

inconsistent with the plain language of the statute.

Allowing actuaries to inflate an employer’s

withdrawal liability beyond that contemplated by

statute only frustrates ERISA’s stated purpose.

Caesars v. Local 68 Operating Engineers Pension

Fund, 932 F.3d 91, 97 (3d. Cir. 2019).

Withdrawal liability is intended to—and does—

reduce a multiemployer pension plan’s unfunded

vested benefits by allocating such underfunding to

employers when they withdraw. This reduces the cost

of maintaining the plan for the remaining

contributing employers. But this goal (reducing the

cost of maintaining the plan for the remaining

contributing

employers)

does

not

permit

multiemployer pension plans or their actuaries to

inflate liability above that intended by Congress.

4

Moreover, a multiemployer pension plan’s obligation

to collect withdrawal liability does not override the

requirement for the plan to follow ERISA’s plain

language. As the Third Circuit recently held, a

multiemployer pension plan’s failure to comply with

ERISA may even result in the inability to collect any

withdrawal liability from an employer for whom

liability is otherwise owed. See Allied Painting &

Decorating, Inc. v. Int’l Painters & Allied Trades

Indus. Pension Fund, 107 F.4th 190, 198 (3rd Cir.

2024) (employer that failed to assess employer “as

soon as practicable” as required by 29 U.S.C. § 1391(b)

was prohibited from collecting any withdrawal

liability from that employer).

This obligation—to follow the statute—applies

equally to multiemployer pension plan actuaries. As

Circuit Courts have consistently held in withdrawal

liability cases, “ERISA does not yield to [actuarial

standards], the standards must succumb to the

statutory requirements.” See e.g., Sofco Erectors, Inc.,

v. Trs. Of the Ohio Operating Eng’rs Pension Fund, 15

F.4th 407, 423 (6th Cir. 2021). And whether policy

may support a different result is irrelevant, because

“[e]ven if Congress could or should have done more,

still it ‘wrote the statute it wrote—meaning, a statute

going so far and no further.’” Caesars, 932 F.3d at 98

(citing Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, 583

U.S. 416, 434 (2018) (quoting Michigan v. Bay Mills

Indian Cmty., 572 U.S. 782, 794 (2014))).

Applying ERISA’s plain language, and rejecting

assumptions selected by a multiemployer pension

plan’s actuary that do not obey the statute, is

consistent with this Court’s decision in Concrete Pipe

& Prods. of Cal., Inc., v. Constr. Laborers Pension

5

Trust for S. Cal., 508 U.S. 602 (1993). Concrete Pipe

addressed whether ERISA’s presumption in favor of

the determinations made by a multiemployer pension

plan’s actuary violated an employer’s due process

rights. 508 U.S. at 615 fn10. This Court found no such

violation, inter alia, because unlike a multiemployer

pension plan’s trustees, its “actuary is not, like the

trustees, vulnerable to suggestions of bias or its

appearance.” Concrete Pipe, 508 U.S. at 632. But

Concrete Pipe did not provide actuaries carte blanche

authority to disregard statutory requirements. Since

Concrete Pipe, Circuit Courts have repeatedly had to

force actuaries to heel to the plain language of ERISA.

The Court should do the same in this case.

ARGUMENT

Petitioners thoroughly explained that, under the

plain language of ERISA, assumptions selected by the

actuary for the Trustees of the IAM National Pension

Fund (the “Fund”) in effect on December 31, 2017,

must be used to calculate the withdrawal liability of

an employer that withdraws during the 2018 plan

year. Amicus incorporates those arguments by

reference. Amicus focuses its argument here on the

necessity to strictly apply the statute’s plain language

in all aspects of withdrawal liability. Strict

application of the statutory text is necessary to avoid

the potential for actuary bias, intentional or not,

against withdrawing employers.

6

I.

AFTER

CONCRETE

PIPE,

MULTIEMPLOYER PENSION PLANS AND

THEIR ACTUARIES HAVE FREQUENTLY

CALCULATED

WITHDRAWAL

LIABILITY

INCONSISTENT

WITH

ERISA’S PLAIN LANGUAGE

In Concrete Pipe, this Court found that actuaries are

not “vulnerable to suggestions of bias or its

appearance.” 508 U.S. at 632. But since then,

numerous instances followed of actuaries failing to

comply with the plain language of the statute. This

disregard for the statutory text has been the result of

direct instructions from trustees of multiemployer

pension plans. See e.g., Chicago Truck Drivers,

Helpers and Warehouse Workers Union (Independent)

Pension Fund v. CPC Logistics, Inc., 698 F.3d 346,

355–57 (7th Cir. 2012) (recounting that the trustees

selected the interest rate and the actuary’s use of the

interest rate the trustees selected “was a result either

of [the actuary] having been confused by the Supreme

Court’s decision in the Concrete Pipe case or of

pressure from the plan”). Alternatively, the actuary’s

disregard for the statutory text may be the result of

more general statements from trustees that they may

end the actuary’s engagement if the actuary does not

tailor assumptions to maximize withdrawal liability.

Or it might still be the result of an actuary’s

marketing tactic to obtain a multiemployer pension

plan as a client. Or it could simply be because the

actuary believes the trustees want the actuary to

maximize withdrawal liability. In each instance of an

actuary overstepping their authority (and showing

“vulnerab[ility] to suggestions of bias or appearance”),

Circuit Courts have correctly applied the plain

7

language of ERISA, rejecting the actuary’s disregard

for the statutory text. Concrete Pipe, 508 U.S. at 632.

A.

Actuaries manipulate the interest

rates used to calculate an employer’s

withdrawal

liability,

in

direct

violation of ERISA.

Three Circuit Courts have struck down actuaries’

assumptions used to determine the multiemployer

pension plans’ unfunded vested benefits for purposes

of calculating withdrawal liability. See Sofco, 15 F.4th

at 423; UMW 1974 Pension Plan v. Energy West

Mining Co., 39 F.4th 730, 739 (D.C. Cir. 2022); GCIUEmployer Retirement Fund v. MNG Enterprises, Inc.,

51 F.4th 1092, 1099 (9th Cir. 2022). Like this case,

these cases involved the interest rate selected by the

relevant multiemployer pension plans’ actuaries to

value vested liabilities. (Unlike the present case,

these assumptions were adopted before the end of the

plan year preceding the relevant employer’s

withdrawal.) The issue in each case was that the

assumptions selected by the actuaries failed to comply

with the requirements of ERISA § 4213(a)(1), 29

U.S.C. § 1393(a)(1). Specifically the actuaries did not

base their assumptions on the characteristics of the

multiemployer pension plan in question, taking into

consideration the historical experience of the plan as

well as reasonable expectations of future experience.

In Sofco, the multiemployer pension plan’s actuary

used a blended interest rate, commonly referred to as

the Segal Blend. 15 F.4th. at 420–21. The Segal Blend

values a portion of the plan’s liabilities using the same

interest rate applied by the Pension Benefit Guaranty

Corporation (PBGC) for terminating single-employer

8

plans and for multiemployer plans that have incurred

a mass withdrawal. Id. In turn, at the relevant time,

PBGC based this interest rate on the rates charged by

insurers to price annuities. Id. But annuity rates have

nothing to do with the characteristics of the plan, and

are not based on the plan’s historical experience or its

reasonable future expectations. Instead, annuities are

assets that the fund had not indicated it will ever

purchase. Id. at 421. In the Segal Blend, the

remaining liabilities not valued using PBGC interest

rates are valued based on an interest rate reflecting

characteristics of the plan, including historical

experience and reasonable future expectations. Id.

The Sixth Circuit held that the use of the Segal Blend

violated ERISA because “it dilutes the actuary’s best

estimate with rates on investments that the plan is

not required to and might never buy, based on a set

formula that is not tailored to ‘the unique

characteristics of the plan.’” Id. (quoting Board of

Trustees v. Eberhard Foods, Inc., 831 F.2d 1258, 1263

(6th Cir. 1987)). Rejecting the multiemployer pension

plan’s argument that its actuary’s use of the Segal

Blend was accepted actuarial practice, the Sixth

Circuit held that “ERISA does not yield to [actuarial

standards], the standards must succumb to the

statutory requirements.” Sofco, 15 F.4th at 423. The

court then required the multiemployer pension plan

to calculate the withdrawn employer’s withdrawal

liability using an interest rate based solely on the

plan’s characteristics.

Although Sofco addresses the validity of the interest

rate chosen by the actuary, and not the timing of the

interest rate selection, the case illustrates an

actuary’s bias, whether intentional or not, to select

assumptions that increase an employer’s withdrawal

9

liability rather than comply with

requirements. It is one example of many.

statutory

In both Energy West and MNG Enterprises, when

calculating withdrawn employers’ withdrawal

liability, the respective multiemployer pension plans

and their actuaries valued all liabilities based on the

PBGC interest rate. The D.C. Circuit and the Ninth

Circuit, respectively, rejected the use of the PBGC

interest rate as noncompliant with ERISA

§ 4213(a)(1).

In Energy West, the D.C. Circuit held that

compliance with ERISA § 4213(a)(1) requires an

actuary to base interest rate assumptions on the

plan’s actual investments because the plain language

of the statute requires assumptions be based on the

multiemployer pension plan’s characteristics. 51

F.4th at 740–41. Because the statute (and not

actuarial standards) is the law, the D.C. Circuit

rejected the multiemployer pension plan’s argument

that use of the PBGC rate was accepted practice under

the Actuarial Standards of Practice. Id. Further, the

court held that the requirement under ERISA

§§ 4213(a)(1) and 4221(a)(3)(B)(i) that assumptions be

reasonable in the aggregate extended beyond the

abstract—it

requires

assumptions

that

are

“reasonable relative to the plan, taking the plan’s

experience into account.” Id. at 741. If an actuary does

not base assumptions on the plan’s characteristics,

the assumptions are not reasonable because they fail

to take “into account the experience of the plan.” Id.

Similarly, in MNG Enterprises, the Ninth Circuit

rejected an actuary’s use of the PBGC interest rate to

calculate unfunded vested benefits in determining an

employer’s withdrawal liability. The court reasoned

10

the statute “specifies that these assumptions and

methods must ‘tak[e] into account the experience of

the plan and reasonable expectations’ and ‘in

combination, offer the actuary’s best estimate of

anticipated experience under the plan.’” MNG

Enterprises, 51 F.4th at 1099 (quoting 29 U.S.C.

§ 1393(a)(1)). Further, following the D.C. Circuit, the

court held that the “best estimate” language means

that “the actuary must make assumptions based on

the plan’s particular characteristics when calculating

withdrawal liability.” Id. (quoting Energy West, 39

F.4th at 738). And that by ignoring the expected

returns of the plan’s assets and experience, the

multiemployer pension plan’s actuary’s assumptions

failed to meet the statutory “best estimate” standard

because it was not tailored to the features of the plan.

Id. (citing Sofco, 15 F.4th at 421). The court rejected

the multiemployer pension plan’s argument that an

actuary’s assumptions need only be reasonable in the

aggregate, even if not based on plan characteristics.

The court held instead that it could not ignore the

statute’s language directing the actuary to offer “the

best estimate of anticipated experience under the

plan.” Id. (quoting 29 U.S.C. § 1393(a)(1)) (italics in

original).

As with Sofco, neither Energy West nor MNG

Enterprises involves the question of whether the

actuarial assumptions must be those adopted as of the

last day of the plan year preceding the year of

withdrawal; in each case, the assumptions challenged

were in effect as of such date. Instead, the issue was

whether the interest rate selected complied with the

statute. Nonetheless, these cases illustrate that

multiemployer pension plans’ actuaries do, in fact, use

assumptions

to

inflate

withdrawal

liability

11

notwithstanding whether such assumptions are

supported by the plain language of the statute.

B.

Multiemployer plans and their

actuaries

attempt

to

assess

withdrawal

liability

when

no

withdrawal (as defined by ERISA)

occurred.

MNG Enterprises provides still another example of

an actuary making determinations inconsistent with

the statute for the purpose of increasing an employer’s

withdrawal liability. In addition to the question of the

appropriate interest rate to be used to calculate an

employer’s withdrawal liability, the Ninth Circuit also

faced the question of whether the multiemployer

pension plan could assess the employer for partial

withdrawals at the end of 2014 and 2015 even though

the employer had completely withdrawn from the plan

in early 2014. MNG Enterprises, 51 F.4th at 1096. The

multiemployer pension plan argued that partial

withdrawals could follow the complete withdrawal

because ERISA contained no language expressly

prohibiting such a determination. Id. The court,

however, held that ERISA was unambiguous that a

partial withdrawal could not occur after a complete

withdrawal. Id. at 1098. It reasoned that because the

statute defines a complete withdrawal as a permanent

cessation of any contribution obligation or covered

operation, and one cannot partially cease something

after completely ceasing it, a partial withdrawal

cannot follow a complete withdrawal. Id.

The Ninth Circuit’s conclusion that the plain

language of the statute does not permit a

multiemployer pension plan from assessing an

employer for partial withdrawals that allegedly occur

12

after the employer has already completely withdrawn

from the same multiemployer pension plan makes

perfect sense. But, what matters here is that the

multiemployer pension plan and its actuary even

attempted to assess a partial withdrawal after it had

assessed a complete withdrawal. This is just another

example of an actuary whose determination is based

on inflating a withdrawn employer’s withdrawal

liability, and not on compliance with the plain

language of the statute.

Caesars provides another such example. There, a

multiemployer pension plan assessed an employer for

partial withdrawal liability as calculated by its

actuaries after Caesars closed one of its four

contributing Atlantic City casinos. Caesars, 932 F.3d

at 94. The multiemployer pension plan argued that

based on the policy behind withdrawal liability—

which it alleges was to maximize payments to the plan

to ensure plan solvency—the court should find a

partial withdrawal even though no such partial

withdrawal occurred under the statutory language.

Id. at 97. The court rejected this argument, concluding

that imposing capricious withdrawal liability where

the statute does not provide for it discourages “the

maintenance and growth of multiemployer pension

plans” in the first place, thereby frustrating one of

ERISA’s stated policies. Id. (citing 29 U.S.C. §

1001a(c)(2)). The court instead enforced the law that

Congress wrote. Id. at 98.

Although Caesars is not related to interest rate

assumptions, it shows a multiemployer pension plan

and its actuary making a withdrawal liability

determination not grounded in the plain language of

ERISA, but rather based on maximizing an

13

employer’s withdrawal liability beyond what ERISA

authorizes.

C.

Multiemployer plans and their

actuaries

violate

ERISA

by

misidentifying

the

highest

contribution rate when calculating

an employer’s withdrawal liability.

In still another example of actuary bias against

withdrawn employers in the face of contrary statutory

language, the Seventh Circuit recently rejected a

multiemployer pension plan’s actuary’s attempt to use

post-2014 contribution rate increases in determining

a withdrawn employer’s withdrawal liability. Cent.

States v. Event Media, Inc., 135 F.4th 529, 533 (7th

Cir. 2025). Under ERISA § 4219(c), a withdrawn

employer’s annual withdrawal liability payment is

determined, in part, by the employer’s highest

contribution rate during the ten-year period ending in

the year the employer withdraws. 29 U.S.C.

§ 1399(c)(1)(C)(i)(II). However, for a critical status

multiemployer pension plan (like the plan at issue in

Event Media), any required contribution rate increase

after 2014 is disregarded for purposes of determining

an employer’s annual withdrawal liability payment.

29 U.S.C. § 1085(g)(3)(A); Event Media, 135 F.4th at

533. Even though the two exceptions to this general

rule were inapplicable, the actuary in Event Media

still calculated the employer’s annual withdrawal

liability payment using contribution rates that

included the post-2014 rate increases. 135 F.4th at

533. The multiemployer pension plan attempted to

justify this calculation because it generates greater

withdrawal liability payments to the plan, thereby

14

reducing unfunded vested benefits. Id. at 533–34. The

Seventh Circuit rejected the actuary’s use of these

contribution rates and the multiemployer pension

plan’s argument in support of those higher

contribution rates, because they ignored the plain

language of the statute that prohibited the use of

those higher contribution rates. Id. at 534.

Although Event Media is also not a case addressing

the timing issue of an actuary’s selection of

assumptions, it further illustrates a multiemployer

pension plan’s and actuary’s practice of calculating

withdrawal liability based on assumptions, rules and

policies designed to maximize the amount of an

employer’s withdrawal liability, notwithstanding

precise statutory language prohibiting such practices.

D.

Actuaries implement their own policy

preferences when calculating an

employer’s withdrawal liability.

Just last month, the Sixth Circuit rejected a

multiemployer pension plan’s actuary’s use of an

interest rate not based on the characteristics of the

plan, but instead on the actuary’s policy

considerations of discouraging employers from

leaving the plan. Ace-Saginaw Paving Company v.

Operating Engineers Local 324 Pension Fund, No. 241288, ____ F.4th _____, 2025 WL 2238023, **4–5 (6th

Cir. 2025). The multiemployer pension plan

unsuccessfully argued that it was appropriate for its

actuary to prioritize the plan’s remaining employers

over its withdrawing ones because ERISA was

concerned with protecting multiemployer pension

plans and their participants, and not withdrawing

15

employers. Id.,*6. The court rejected this argument,

reasoning:

[I]t is not the role of the actuary to

consider these policy issues. Congress

made the applicable policy choices when

it enacted § 1393. In doing so, it removed

policy considerations from the equation

by requiring the “apparently unbiased”

actuary to calculate withdrawal liability,

and by prohibiting trustees from

influencing the assumptions and

methods used to do so.

Id., *5 (quoting Concrete Pipe, 508 U.S. at 635). The

Sixth Circuit continued, explaining that Congress did

not intend to “pursue a statute’s objectives to every

possible extent.” Id. (citing Rodriguez v. United

States, 480 U.S. 522, 525–26 (1987) (per curiam)).

Further, the court observed that withdrawal liability,

even when calculated consistent with the statute,

already discourages employer withdrawals on its own,

and that there is no evidence Congress intended for

withdrawing employers to pay more than their “fair

share” of the multiemployer pension plan’s unfunded

vested benefits. Id. And what the plan’s actuary

attempted to do was just that, make withdrawn

employers pay more than their “fair share.” Id.

Lastly, only one other Circuit Court has addressed

whether a plan actuary may adopt new assumptions

after the last day of the plan year in which an

employer withdraws, but still apply the changed

assumptions to such withdrawn employers. In

National Retirement Fund v. Metz, the Second Circuit

concluded that the plain language of the statute

prohibited the use of assumptions adopted after the

16

last day of the plan year preceding the employer’s

withdrawal. 946 F.3d 146, 151 (2nd Cir. 2019). The

court held that the assumptions in effect on the last

day of the plan year before the year of the employer’s

withdrawal must be used. Id. at 151. Otherwise, the

selection of assumptions after such time would create

significant opportunity for manipulation and bias

against withdrawn employers. Id. Relying in part on

this Court’s recognition in Concrete Pipe that a

multiemployer pension plan’s use of different interest

rates for different purposes may be attacked as

presumptively unreasonable, the Second Circuit

recognized that finding for the fund might permit

even greater manipulation by multiemployer pension

plans or their actuaries. Id. at 151–52 (citing Concrete

Pipe, 508 U.S. at 632).

******

In Concrete Pipe, this Court reasonably assumed

that multiemployer pension plan actuaries would not

be subject to bias against withdrawing employers, for

whatever the reason. History shows, however, that

assumption has not always borne true. And in fact, as

illustrated above, actuaries have ignored the

statutory requirements completely to achieve policy

goals the actuary believes, correctly or not, is in the

best interest of the multiemployer pension plan.

Amicus does not intend to suggest that all

multiemployer

pension

plans

influence

the

assumptions of their actuaries, or that all actuaries

choose assumptions and make determinations for the

sole purpose of inflating withdrawal liability even

when contrary to the plain language of the statute.

Amicus merely draws attention to the fact that such

17

biased decisions, or at least the appearance of bias,

are not a rare occurrence.

The only true means of assuring fairness in the

process of calculating an employer’s withdrawal

liability is to precisely apply the words Congress chose

for the statute controlling the calculation of

withdrawal liability. Further, withdrawal liability

should be calculated based on assumptions in effect on

the last day of the plan year immediately before an

employer withdraws. Freezing assumptions on that

date prevents a multiemployer pension plan or

actuary from manipulating assumptions to inflate

withdrawal liability against a particular employer or

group of employers, for example, a large employer that

may unexpectedly withdraw. Congress did not confer

power upon multiemployer pension plans to adjust

assumptions as each employer withdraws. Otherwise

it would not have required withdrawal liability to be

calculated as of the last day of the plan year before the

plan year of an employer’s withdrawal. See 29 U.S.C.

§ 1391.

II.

UNCERTAINTY IN CALCULATING AN

EMPLOYER’S WITHDRAWAL LIABILITY

FRUSTRATES THE PRIMARY PURPOSE

OF

ERISA—TO

CONTINUE

AND

MAINTAIN

VOLUNTARY

PENSION

PLANS.

The uncertainty created by the assumptions, rules

and policies adopted by certain multiemployer

pension plans and their actuaries to inflate an

employer’s withdrawal liability only frustrate

ERISA’s objective “to encourage the continuation and

maintenance of voluntary private pension plans for

18

the benefit of their participants.” 29 U.S.C. §

1302(a)(1). See also 29 U.S.C. § 1001a(C)(2). An

employer’s inability to rely on the plain language of

ERISA discourages such continuation because it

creates risk of unpredictable liability being imposed

on employers once they exercise their right to

voluntarily cease participating in a given

multiemployer pension plan. With this uncertainty, it

is less likely existing employers will remain in a

multiemployer pension plan, or that new employers

will join a multiemployer pension plan.

ERISA’s provisions, if enforced as written, reduce

the uncertainty surrounding participation in

multiemployer pension plans. For example,

establishing that multiemployer pension plans must

base withdrawal liability on unfunded vested benefits

existing at the end of the plan year before the

employer withdraws assures employers that a plan

cannot influence an actuary to take actions after-thefact to punish the employer for its decision to

withdraw. Likewise, other rules also reduce employer

uncertainty. Specifically, and as discussed above,

ERISA provides detailed and precise statutory

provisions that dictate when withdrawals occur, how

assumptions in calculating withdrawals are to be

selected, and how soon withdrawal liability is to be

assessed and collected. Collectively, these rules

assure a level playing field for employers, pension

plans, and unions. But when a multiemployer pension

plan can take actions that put a foot on the scale in its

favor, employers’ only recourse is to end participation

in these voluntary defined benefit pension plans.

The concern that employers are ceasing to support

voluntary defined benefit pension plans is not a

19

hypothetical “sky is falling” argument. It is a practical

fact that employers are withdrawing from defined

benefit multiemployer plans in much greater numbers

than they are agreeing to participate in them. See

Emp. Benefits Sec. Admin., U.S. Dep’t of Labor,

Private Pension Plan Bulletin Historical Tables and

Graphs 1975–2022 at 9 tbl. E7 (September 2024)

(https://tinyurl.com/mv9dwt23)

(active

plan

participants decreased approximately 40% between

1975 and 2022). Amicus does not argue that

unpredictability in withdrawal liability is the sole

cause of this decline, but employers’ knowledge that

multiemployer pension plan actuaries can increase an

employer’s potential withdrawal liability sixfold at a

moment’s notice with a simple stroke of the pen does

not

encourage

continued

participation

in

multiemployer pension plans.

Just consider the Fund in this case. At the end of the

plan year after the Petitioners withdrew, the plan’s

actuary increased the Fund’s unfunded vested

benefits from under $500 million to over $3 billion

overnight. See Pet. App. 23a-24a. The Fund did not

lose $2.5 billion in assets that night. Rather, its

actuary decided that the plan would no longer earn

7.5% on its investments, and therefore reduced the

interest rate by over 15%. Id. Surprisingly, the

actuary still believed these same assets would earn

7.5% for other purposes, without explaining how the

same assets could have different returns for different

purposes. How can any reasonable employer continue

to participate in these voluntary defined benefit

pension plans when multiemployer pension plans and

their actuaries flaunt the strict requirements of the

statute to maximize withdrawal liability? The obvious

answer is that they cannot.

20

This Court reasonably believed, in Concrete Pipe,

that actuaries’ professional obligations and judgment

would not create the kind of mischief, intentional or

not, discussed herein. 508 U.S. at 632. But as

illustrated above, that simply has not been the case,

at least for some multiemployer pension plans and

actuaries.

Although some fluctuations in an employer’s

withdrawal liability will occur from year-to-year

based on a plan’s performance, the way to prevent

manipulation, and create some certainty in

withdrawal liability calculations, is to enforce the

statute strictly as written. As the Second Circuit held

in Metz, an employer that withdraws in one year

should be able to rely on the assumptions in effect at

the end of the plan year preceding its withdrawal, as

that is the date for which unfunded vested benefits are

to be determined in calculating such employer’s

withdrawal liability. 946 F.3d at 150–51.

Confirmation that the statute governs—not the

whims of actuaries—will allay employers’ concern

that a multiemployer pension plan can manipulate

assumptions to inflate an employer’s withdrawal

liability after it has already withdrawn. The same is

true for all other statutory withdrawal liability

provisions discussed above, but that are not the

subject of this appeal. Strict enforcement of the

statute as written, and not deference to actuarial

standards of practice or other multiemployer pension

plan rules, policies and procedures, enables employers

to reasonably predict potential liability relating to

participation in a defined benefit multiemployer

pension plan. Such certainty only fosters employers’

willingness to continue and maintain their voluntary

participation in defined benefit plans, rather than

21

avoiding them at all costs. Such a result benefits

employers, plans, and participants alike.

CONCLUSION

For the foregoing reasons and those in Petitioners’

brief, the Court should reverse the judgment below.

Respectfully submitted,

ERIC D. FIELD

SARAH BRYAN FASK

LITTLER MENDELSON, P.C. Counsel of Record

815 Connecticut Ave., N.W. LITTLER MENDELSON, P.C.

Washington, D.C. 20006

1601 Cherry Street

(202) 772-2539

Suite 1400

efield@littler.com

Philadelphia, PA 19102

(267) 402-3070

sfask@littler.com

Counsel for Amicus Curiae