In In Re Marcals Paper Mills, Inc., No. 09-4574 (3rd Cir. 2011), a case of first impression, the United States Court of Appeals for the Third Circuit has held, in a precedential opinion, that the post-petition portion of a multiemployer fund’s withdrawal liability claim arising under ERISA against a chapter 11 debtor is entitled to administrative priority.  In the past, chapter 11 debtors would object to any amount of withdrawal liability as being anything other than a general unsecured claim arising from a prepetition transaction.  However, the Third Circuit has now held that a portion — the post-petition portion — of withdrawal liability arising under ERISA is entitled to administrative priority under Sections 507 and 503 of the Bankruptcy Code.  This opinion makes clear that any chapter 11 debtor that incurs (or might incur) post-petition withdrawal liability has yet another hurdle to jump before it can reorganize, making pre-bankruptcy planning even more significant.  A full copy of the opinion can be viewed here:  www.ca3.uscourts.gov/opinarch/094574p.pdf.

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