Whether ERISA prohibits multiemployer pension plan actuaries from selecting actuarial assumptions to calculate withdrawal liability, after the Measurement Date, even when such assumptions are based on their 'best estimate of anticipated experience under the plan' and professional standards governing actuaries

QUESTION PRESENTED The Employee Retirement Income Security Act (“ERISA”) imposes withdrawal liability on employers that withdraw from underfunded multiemployer pension plans. Withdrawal liability is intended to address underfunding by requiring withdrawing employers to pay their allocable share of a plan’s unfunded vested benefits. The underfunding problem has worsened dramatically, in large part, due to the 2007-to-2009 recession and the coronavirus pandemic. Section 4213 of ERISA governs an actuary’s selection of assumptions to calculate withdrawal liability. It requires that the assumptions be the actuary’s “best estimate of anticipated experience under the plan.” Section 4211 of ERISA requires that withdrawal liability be calculated “as of” the last day of the plan year immediately prior to the year in which an employer withdrew (the “Measurement Date”). Neither Section 4213 nor Section 4211 of ERISA impose a deadline by which actuaries must select assumptions. The Second Circuit’s decision, requiring actuaries to select assumptions on or before the Measurement Date, interferes with actuaries’ selection of appropriate assumptions, placing multiemployer pension plans at risk of not collecting appropriate amounts of withdrawal liability. The question presented is: Whether ERISA prohibits multiemployer pension plan actuaries from selecting actuarial assumptions to calculate withdrawal liability, after the Measurement Date, even when such assumptions are based on their “best estimate of anticipated experience under the plan” and professional standards governing actuaries.