I am back at work today after my fun Arizona vacation. Sigh. Today’s problem: Mediation. My client is a family Dad, Mom, and Son. Dad worked his whole life in construction, and was a proud union member for over 45 years. He started a little company, and did pretty well. When he started his business, he voluntarily signed a union agreement because he wanted to provide good wages and benefits for his guys. He always made all of his payments, and is currently receiving a union pension himself. His son followed him into construction, and before Dad retired, had a pretty good business going on his own doing a different kind of work in the same general industry.

A couple of years ago, he got a letter telling him that he owed the pension over a million dollars for withdrawal liability. Withdrawal liability occurs when an employer is no longer participating in a multi-employer pension trust after having participated at a certain level for a certain period of time. If the pension is financially short when the employer stops participating, the employer is on the hook for its share of the pension’s shortfall. Many of these pensions were in crisis status after the market crashed in 2008, and demands for this liability increased after that time. The letter also said that the son was on the hook as a successor employer to the dad.

To keep it simple, the successorship claims on the son are very weak, and are not really the problem. Dad and son hired a lawyer before me who screwed this case up. There is a construction industry exemption for guys like Dad, who, if they retire and go completely out of business (as Dad did), can escape this withdrawal liability altogether. BUT, you have to demand arbitration and assert this defense at arbitration. The lawyer did not do that, and by the time I got the case, the defense had been waived by the failure to demand arbitration. Yes, they are suing that lawyer for malpractice.

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I have to get this case settled without gutting Mom and Dad’s retirement. Wish me luck, this one won’t be easy.