Third Circuit Affirms Finding That Withdrawal Liability Assessment Was Untimely

When an employer withdraws from a multiemployer pension plan, the plan's trustees must notify the employer of the amount of its withdrawal liability and demand payment. Employers assessed with withdrawal liability often argue that the assessment is untimely because the trustees did not send it to the employer "as soon as practicable," as is required under 29 U.S.C. § 1399(b)(1). On the basis of dicta in the Supreme Court's opinion in Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192 (1997), practitioners have interpreted the defense to require a showing of laches – that is, undue delay and undue prejudice resulting from the delay. Historically, the defense seldom succeeded because employers could not establish that they were unduly prejudiced by a delay in the assessment. In Allied Painting & Decorating Inc. v. International Painters and Allied Trades Industry Pension Fund, 107 F.4th 190 (3d Cir. 2024), the Third Circuit