Board of Trustees of Trucking Employees of North Jersey Welfare Fund, Inc.-Pension Fund v. Kero Leasing Corp.

288 matter. Such postal the letter or government. in favor of the Lane delivers

strued 2680(b) Pena, 192, 2092, interpretation furthers 518 U.S. S.Ct. v. (1996). underlying objectives, Construing particularly L.Ed.2d 486 FTCA’s 2680(b) made all way ensuring key governmental in such a is that a those of language. by damage expansive activity disrupted easier statute’s will not be out” arising claim phrase “[a]ny exposure of Unit- limiting suits and of rath- Congress’s intent to broaden claims. evinces fraudulent ed States excessive or “negligent Kosak, limit the 1519. exception er than 465 U.S. 104 S.Ct. at See transmission, matter.”1 postal of letters or 2680(b)’s

Moreover, § legislative history IV. Conclusion Congress intended to plain makes reasons, af- foregoing For the we will government from lawsuits that protect Court. firm the of the District by the unavoidable might generated ordinary accepted incident mishaps pack- delivering millions of

operations Suchomajcz, year. and letters each ages Notwithstanding Do- at F.Supp. contrary, arguments lan’s “ordinary operations” of accepted USPS’s necessity encompass must more than

merely sorting the mechanical and transfer Indeed, imagine a of the mail. is hard OF OF TRUCK- BOARD TRUSTEES ordinary operation incident accepted more NORTH JER- ING EMPLOYEES OF delivering packages let- millions FUND, INC-PEN- SEY WELFARE act year each than the ultimate ters FUND SION delivery by employees. USPS v. thus the District agree

We with nothing there out of CORPORATION, KERO LEASING deliver ordinary employee about USPS Jersey Corporation; Robert C. placing the mail or the mail on ing Holmes, individually, proprietor, instead in the mailbox. Dolan’s porch jointly severally; Leasing em accident was incidental to USPS Company, proprietorship porch. Be ployee placing mail on employees do not monitor cause USPS Robert C. they

how the mail deliver is retrieved v. to the re third-parties, mishaps related may of the mail trieval be unavoidable. Trucking Employ- Board of Trustees of Fund, ees of North Welfare hold the con We therefore Inc.-Pension delivering matter, postal text of letters or process “transmission” means the con another, Trucking Employ- start Trustees

veying person from one Board of Jersey, North ing when the receives the letter or ees of Welfare USPS Fund, Appellant matter and Inc.-Pension postal ending when USPS States, 2680(b)'s (cit- F.Supp. language. Id. at 802 1. Robinson United tion of Kosak, 1519). (S.D.Ga.1994), interpreta- 104 S.Ct. reached similar U.S. Trucking Employ- of Trustees of Board Jersey Fund,

ees North Welfare Inc-Pension Fund

v. Jersey Leasing Corporation, a Kero Corporation; Holmes, a Robert C. individually, proprietor, jointly and severally; Leasing Company, proprietorship

Robert C. Holmes Trucking Employ- Board Trustees of ees of North Welfare Inc.-Pension Holmes, Appellant. Robert C. 03-2176, 03-2344, 03-3283, No. 03-3448. United of Appeals, States Court

Third Circuit. Argued Feb. 2004. July Filed (Argued),

Elizabeth Roberto Roberto Offices, New, David Philadelphia, Law W. New, Bloomfield, New David Herbert & J., Appellant/Cross Appellee. N. for A. Telegen (Argued), Arthur G. Robert Boston, MA, Fisher, Foley Hoag, Ap- pellee/Cross Appellant. RENDELL, BARRY

Before ROSENN, Judges. Circuit RENDELL, Judge. Circuit appeals called upon In these we are of limita- determine relevant statute by the for an trustees tions action to recover withdrawal fund Holmes, liability. The Robert appellee, company of a prietorship sole shareholder that owned and equip- the former leased ment to HTI. Another was Kero making payments plan, Leasing that ceased Corporation (“Kero”), a corpo- proprietor former sole of another and the provided ration that employees to work at company. related The District held certain HTI terminal. Holmes was the action the pension instituted proprietor sole of Holmes Leasing and the untimely, fund Holmes was as the sole shareholder of Kero. Kero entered years was filed seven after the complaint into a bargaining agreement collective with accrued, year beyond of action one cause the union representing its workers.1 The set forth in the statute agreement required Kero to make contri- Multiemployer Plan Pension Amendments employees butions behalf of its (“MPPAA”), Act of 1980 29 U.S.C. Fund’s plan. §§ 1381-1461. For the reasons set forth 1987, In March agreed Holmes below, to part we will affirm in and sell reverse Resources, to HTI Route a Canadian- part. holding owned company. The sale was consummated in September and I. Kero’s stock was included in the sale along appellant, The Board Trustees of all with interests in propri- Holmes’s sole Trucking Employees Jersey of North Wel- etorships. December after (“the Fund, fare Inc.—Pension Fund Route assumed Resources had ownership Fund”), is plan sponsor the a multiem- businesses, and control of his Holmes re- fund ployer Employ- established under the tired to According Florida. to the Fund’s Security ee Retirement Income Act of action, complaint in this Kero stopped (“ERISA”). 1002(37), §§ 29 U.S.C. making contributions Fund in De- 1301(3). Employers participating in the 1989, prior cember of to the expiration of pension plan Fund’s made contributions to its duties under collective bargaining the Fund the based on terms set forth in result, agreement.2 As a an assessment bargaining agreements they collective ne- withdrawal liability mandatory for was un- gotiated with their employees. the provisions of the MPPAA. See der February 27, 1990, 1381. On Holmes chief was once the executive upon realizing that Kero had withdrawn company of a trucking officer called plan, from the sent a notice of (“HTI”). Transportation Holmes Inc. statutory the assessment of lia- withdrawal During 1980s, created wholly- Holmes bility to Kero. subsidiary companies supply owned em- ployees, equipment, and land to HTI. One 7, 1991, On March after no payments companies Leasing Kero, of these was Holmes by made Fund sent were a letter (“Holmes Company Leasing”), a pro- regarding sole to Route Resources default initially agreement signed during 1. Holmes him- al occurred sometime sale or a self, agreement just since the was formed subsequent sale businesses of the Route incorporation. to Kero's Once Kero rely Resources. We the time on of withdraw- incorporated was in October of Holmes complaint purposes al asserted in the for assigned bargaining agreement, the collective However, describing setting. the factual our duty and contribute to analysis impacted is not choice of a corporation. date, specific indisputably had Holmes sev- companies ered his ties to his the time the specific finding 2. The District Court made no complaints relevant notices and the were sent fact, respect noting with to this that it was were filed. disputed parties and that the withdraw- seeking liability notice was payments, and withdrawal first liability him. from collect the withdrawal in full. Kero contin- was demanded When on ued default its withdrawal II. complaint the Fund filed a payments, in the case complaint instant Court for the United States District three judgment all demands against Route Re- District of New defendants, including per named sources, com- alleging that it was under sonally, in the amount mon with Kero at time of control fees, interest, attorneys’ and liability, plus responsible withdrawal and was therefore only defendant costs. filed, liability. for No answer was and he complaint, answer 13, 1995, on December a default Ini appeal. to file a in this appellee brief against Route Resources. was entered filed the Fund and Holmes tially, both obtaining Notwithstanding its success summary judgment motions judgment, the Fund the default continued The District Court denied both merits. to be unable collect the with- the matter to arbi motions referred 8, 1998, January On coun- drawal with the tration accordance Fund to sel the sent a letter Holmes § 1401. The Court also ordered asking appear deposition, him to for a make liabili Holmes to interim withdrawal information ty Route Re- while arbitra provide payments about the Fund sources, Kero, any pending. and other related cor- tion was See 29 U.S.C. 1399(c)(2); Em Trucking Bd. Trs. porations might responsible that be for the Fund, Inc.— ployees Jersey N. speci- withdrawal The letter also Welfare Centra, 495, 507 Fund v. 983 F.2d Pension fied the amount that Kero owed and noted (3d Cir.1992). that a default had been entered However, against Route Resources. arbitration, argued, Holmes in- During contain letter did not indication alia, ter provide the Fund failed to impose liability would seek to on Fund the with- notice of its intention seek Meanwhile, Fund personally. Holmes liability personally from Holmes drawal by filing the instant action instituted practicable” as after Kero’s with- “as soon complaint Jersey in the District of New on drawal, required 29 U.S.C. 1998, Kero, 31, naming March 1399(b)(1), Holmes be and should therefore and Leasing, personally Holmes as defen- assessing pen- barred from the withdrawal 22, deposition July dants. After his on him. alty against December copy opinion com- agreeing received the arbitrator issued plaint dismissing in this matter from the coun- Fund’s with Holmes and Holmes, According liability.3 sel. was his claim for withdrawal While sale, Kero, implies liability 3. The its the withdrawal dissent Fund and and attorneys diligently words, acted from time the early in the 1990s. In other accrued, liability they and year created Con- six limitations constantly good engaged were at- faith gress provide enough did tempts phantom to track down "Kero's potential to learn time for However, owners.” Dissent at 308. the ar- group Fund had controlled members. The findings, bitrator's which were based on personally option pursuing light during dis- information that came did, years and well several earlier than covery proceedings, associated with those limitations, the statute of but it sim- within indicate that Fund knew or should ply chose not to do so. known Holmes's connection Holmes, proceeding, ap- arbitration was of the 1995 default judg ment that pealed denying the District Court’s order had been entered Route rejected Resources. The. Court summary judgment referring the mat- this theo ry, adopting reasoning similar to that em cross-appealed ter to arbitration. Holmes States, ployed in Central Southeast & reopen explore and moved to the record to Southwest Areas Pension Fund v. Missis year the six statute of whether sippi Warehouse Corp., F.Supp. expired, the MPPAA had based (N.D.Ill.1994), and distinguishing con that, during discovery the fact related to trolled liability under the MPPAA arbitration, he aware for the became from other alter-ego theories of liability. first time that the Fund had sent a letter so, In doing the Court declined to follow of 1991 accelerating March the with- the lead of certain other New dis liability. Accordingly, urged drawal he trict permitted courts that had actions that the action commenced in 1998 should year after the six limitations peri untimely. dismissed proceed od to by characterizing them as panel Another of our court considered enforcement actions against persons who appeals these remanded the matter previously named, were not but who were September of directing the District admittedly members with to determine Court whether the statute of the defendants that had been named. The expired prior filing limitations had emphasized Court that Holmes had sold of the 1998 action. The District Court his interests the entities in 1988—before record, reopened parties and the filed arose and before notice of it summary another round of motions for given that he continued to dis —and judgment. ultimately granted pute his status as a member of the con summary judgment in favor of Holmes on trolled with Kero. Bd. Trs. Cf. of of 22, 2003, April and ordered the Fund to Trucking Employees N. Jersey of Welfare him in equal reimburse an amount to the Fund, Inc. v. Corp., Gotham Fuel 860 interest, payments, interim attorneys’ fees (D.N.J.1993) F.Supp. 1044 (applying New already and costs paid Holmes had Jersey’s twenty year statute of limitations required by Fund as as well enforcing judgments action seek payments. as interest on those The Court to enforce a default where first determined that the cause of action parties defendants were not to the earlier sending accrued with the of the March dispute action but did not their status Bay 1991 letter. Laundry See Area & members of the group); relevant controlled Dry Cleaning Pension Trust Fund v. Fer Bd. Trucking Employees Trs. N. of of of Cal., Inc., 192, 194, Corp. bar 522 U.S. of Inc. v. Able Truck Welfare (1997) 118 S.Ct. 139 L.Ed.2d 553 (D.N.J. Corp., F.Supp. Rental 822 1091 (holding that a new statute of limitations 1993) (same). starts to run with each payment missed Ultimately, the District Court held that accelerated). payment

when of the debt is action seeking to hold a Strictly applying year the six statute of potential member like case, the Court then jointly severally and liable for the concluded the limitations ex brought withdrawal assessment had to be pired in and that the action was year within the MPPAA’s six statute of brought approximately year one too late. limitations. the Fund’s action was urged

The Fund Court character- dismissed with prejudice,' and the Fund enforcement, ize the 1998 action as was ordered to all payments return made Holmes, ap- The Fund IV. with interest.4 order, cross-ap- and Holmes pealed briefs, parties raise In their various The District Court also issued pealed. proper ap- numerous issues related to Judgment ordering payments limitations to this plication of the statute of to be reimbursed. made Holmes were action, the merits of the District Court’s aspects of the appealed certain arbitration, first en- opinion ordering cross-appealed Judgment, and order, and arbitrator’s forcement are more. Before us now both sets once the amount of reimbursement included cross-appeals, and which appeals judgment. the District Court’s final We for our review. consolidated been issues, many will not reach of these as we will affirm the District determina- Court’s

III. tion statute of related MPPAA’s This action was light of our conclusion that limitations. and MPPAA. The District ERISA untimely, other action was jurisdiction pursuant over it had require are our attention those issues 1451(c). Dis We review the U.S.C. to the calculation of related summary granting order trict Court’s final will dis- reimbursement Holmes. We judgment in of Holmes based on favor pertinent cuss issues—the stat- both § 1291. in Because issues limitations, ute legal, plena are we purely exercise volved turn. amount—in grant District Court's ry review the summary judgment, interpretation its provi of limitations

the MPPAA’s statute A. sion, damages light award applicable consider We first what provision. anti-inurement ERISA’s IUE of limitations in the context of statute Fund v. Barker AFL-CIO Pension & Wil in the the Fund’s action as it is stated liamson, Inc., (3d F.2d Cir. MPPAA, when an complaint. Under the 1986). However, where the relevant stat employer prematurely making pay- ceases ambiguous, utes are silent or defer will a pension plan, ments into the trustees of regulations promulgated to reasonable liability the can assess plan the withdrawal in Department the of Labor connection employer in an withdrawing the statutory provisions with the at issue Chevron, U.S.A., representing employer’s pro amount that case. See Inc. v. this Council, Inc., payments remaining rata of the due Res. share Natural 467 U.S. Def. (1984). 2778, 837, L.Ed.2d to fund.5 29 104 S.Ct. the MPPAA, disputes vacated 5. that arise the the 4. The District Court also the arbitra- In under normally following sequence of events occurs. discussing opinion of tor’s without the merits First, plan trustees of determine that arbitrator, the the by the the determinations made as employer has within the withdrawn mean- the statute of limitations mandated dismissal 1382(1), §§ ing of the MPPAA. 29 U.S.C. Thus, arbitration moot. the and rendered the 1399(b)(l)(A)(I). notify The trustees then District did not discuss whether liability, payment, employer of its demand practica- received "as soon as notice offer an schedule. Id. at amortization ble,” inquiry nor shall we. Such an would 1382(3), 1399(b)(1)(B). 1382(2), §§ The em- finding become after a relevant ninety request ployer days then has year the six filed within action conduct reasonable review of the trustees governed by period, and issues that further 1399(b)(2)(A)(I). liability. § at amount Id. explored. the MPPAAcould be time, dispute is not at that If the resolved 1381(b)(1). Area, ployer Bay The re- § MPPAA extends defaults. at U.S. 194-95, payment However, for lia- 542. sponsibility withdrawal 118 S.Ct. in a case bility beyond withdrawing employer where the trustees elect to accelerate employees liability by demanding payment “all trades or businesses in full fol (whether default, or not are incorporated) lowing employer’s which which per is § common control.” under 29 U.S.C. missible under 29 U.S.C. 1399(c)(5), the 1301(b)(1). case, § In seeks year period begins six to run when provision in order to hold to use is accelerated. See id. at 209 n. (“The liable for Kero’s liabili- withdrawal 118 S.Ct. 542 statute of limitations was once busi- ty, as he the CEO of one on an accelerated debt runs from the date Kero, common ness under control with and the op creditor exercises its acceleration proprietor ”); sole of another. tion .... see also Bd. Trs. Dist. No. 15 Machinists’ Pension Fund v. Kahle setting parameters forth the for (3d Cir.1994) Eng’g Corp., 43 F.3d brought civil actions under the (discussing application of a statute imposed a of lim Congress statute specific payable limitations to debt in install governs recover itations actions to ments). liability. According withdrawal 1451(f)(1) scheme, § statutory parties here do apparently MPPAA action must been fact dispute Fund’s that the letter sent years within “6 after date on Kero the Fund March of 1991 accel arose,” cause of liability by which the action order erated demanding payment timely.6 According for it to be considered in full. correctly District Court Court, Supreme a cause of action for date of identified the letter liability arises starting event that marked the for point each employer time an fails to year the six statute of limitations accord plan make a payment Supreme scheduled Court’s discussion trustees, fact, and the no Bay light trustees have obli Area. In of that period gation to accelerate the an em- bringing debt when actions under the MPPAA 1399(c)(2), may 1401(d); party §§at either initiate arbitration within Id. see Co., period time Galgay

the relevant set forth in Beaverbrook Coal 105 F.3d 1401(a)(1). Cir.1997). employer (3d An its stat- will waive When the con- arbitration rights utory dispute aspects cludes, party may bring either an action liability determination where enforce, arbitration federal district court “to vacate or pre- not demanded within the time modify the arbitrator's award.” at Id. Williamson, by the scribed statute. & Barker 1401(b)(2). arbitration, During 788 F.2d determi- regarding made the nations Fund with- 6. provides The statute an alternative time lim- liability itation, drawal amounts or of classification brought which allows an action to be responsible party as a are employer an enti- -years within "3 after the earliest date on correctness, presumption a tled to of unless acquired plaintiff which the or should have a, employer preponderance the shows of acquired knowledge actual of of the existence the evidence that the are un- determinations of such cause action.” 29 U.S.C. clearly or reasonable Id. at erroneous. 1451(f)(2). provision § The the indicates that 1401(a)(3)(A). longer periods of the two limitation described Here, Regardless requests should ar- apply. for arbitra- has never review or tion, gued employer begin making period apply an must interim that the alternative should claims, payments only liability, of the follow- to save its so we will the withdrawal consider trustees, year schedule period the set forth six described the the limitations in sixty (f). days receiving paragraph within the notice first of subsection initial brought actions under the liability original Kero’s ended recover withdrawal 1451(b), MPPAA, to “enforce year prior one full in March liability Without complaint. of the instant of a withdrawal assess- filing payment further, though Further, any appears it a looking complaint indicates ment.” year of the six straightforward application amount of paragraph that conclusion $3,670,093.70, judgment leads default was untimely. the Fund’s action here was judgment that to demand a proceeds but However, avoid that amount, seeks to Fund against Holmes a different list- by characterizing the instant conclusion sought an ing payments that would be the 1995 default action as one enforce action the MPPAA. original under Route against Re- judgment obtained 1998 com- Only two paragraphs sources, action un- original and not as an even mention the 1995 default plaint lia- impose the MPPAA to withdrawal der nothing related The MPPAA does bility against Holmes. referenced, explicitly is either judgment separate for en- provision not contain for prayer Fund’s re- implicitly, Presumably, of judgments. forcement reading the most obvious lief. therefore, the judg- enforcement think, complaint and, we — law, of state here ment would be matter reading us conclude plausible —leads twenty of limita- carrying year statute action original it states tions, the action urges so Fund MPPAA, than one under the rather timely. was judgment.7 enforce the 1995 However, complaint original action to very clearly states B. liability recover manner in which Notwithstanding the judgment. not one to enforce framed, urges is complaint complaint Like the filed in 1995 differently view the based Resources, complaint us to paragraph the first Route following The Fund’s argument. on the complaint explicitly the 1998 describes the liability, initial notice the withdrawal “an action collection of with- case as for constructive no- In sent constituted [MPPAA].” under the drawal fact, persons all that were complaint replete with state- tice to businesses or is See Kero. action under common control with indicating ments ever Williamson, liability from Barker & F.2d at 127 brought to collect withdrawal employer directly (holding that actual notice to an under the MPPAA. For to all that “Defen- as constructive notice other example, paragraph 32 states serves group). of a have failed make the members dants for the principle liabil- Fund relies on fur- monthly payments of the withdrawal assessment; thus, necessary proposition that a obtained ity it is to ther action one member of a controlled bring payment.” to enforce judgment against all other members. Paragraphs go 33 and 34 describe Indeed, adopt here. even if were to the Fund has not done so other dis- words, position if the correct course of action sent's and hold that a fund bring was enforcement of may only original action under Fund to take to seek the one the liability and default we would remain con- to fix withdrawal must judgment that the failure to articulate seek to the one vinced Fund’s thereafter enforce action, complaint in that than to such a cause of action in its obtained rather assert actions, appeal. original precludes prevailing it from on this we would conclude that new words, Initially, Fund asserts that flawed. our emphasize In other the con- clusion, lia- timely explained above, fully filed suit to recover withdrawal that the judgment in default as bility complaint simply results written does not lend liability entity one determines the such a reading. itself to The second members, matter, complaint of all other controlled amended in this which nearly or named they parties whether are as identical to the Fund’s earlier principle action. complaint would in the resulted 1995 default the Fund to enforce the 1995 default allow judgment, explicitly seeks to collect with- obtained certain mem- judgment liability drawal from Holmes. Such an group against Kero’s controlled bers governed by action is the MPPAA’s six entity deem they other to be an addi- year period. limitations We would find it group, member of that tional difficult read complaint the 1998 as set- including Holmes. ting an forth action to enforce a prior judgment without disregarding the clear it as

Because characterizes action language of the complaint engaging in prior judgment, to enforce a the Fund one illogical contortions.8 But even if we chose urges governed by should be New reinterpret complaint as the Fund Jersey’s twenty year statute of limitations suggests, we still think the action is judgments, for enforcement of N.J. Stat. barred, and that application of a twen- 2A:14-5, than by Ann. rather ty year for judg- statute enforcement of year period. six limitations The MPPAA’s problematic ments is here. This is so for support Fund finds for this view in two several basic reasons. by cases decided district courts, twenty applied both of which First, acknowledges the fact year period seeking to actions that it has not obtained a judgment default for judgments to enforce default against Holmes personally. Additionally, liability withdrawal the MPPAA. the District Court refused to find that Fuel, F.Supp. Gotham See Holmes was notified of the withdrawal lia- (holding that the state limitations Fund, therefore, bility prior 1998. The judgments applies for enforcement of once engage must the difficult task of con- a fund establishes that the defendants vincing us Holmes is somehow liable part single employer were of the relevant when he was not notified of the claim in a Truck, group); F.Supp. Able at 1095 manner; further, timely persuade it must (same). us that Holmes is somehow bound judgment an action he position We conclude that of which had no notice, in regarding the statute of limitations is actual which he was not a named Additionally, adopting simply Fund's alterna- arbitrator never indicated a desire to description judgment. example, tive of this action as en- the 1995 For one to enforce summary require argued judgment the default us force would its first ignore proceedings dispute of the the character motion that Holmes could not during they were conducted because first three amount of he years litigation. request timely four of this our in a Prior to failed arbitration man- ner, instructing already District ex- because bound remand Court to and not he was issue, pro- existing judgment. the statute Fund's amine of limitations an The conduct ceedings throughout litigation early stages in the Court and of this District before they reading complaint arbitrator were structured as be in our would reaffirms original original stating action under the MPPAA. an action under arguments prior judg- first made Fund in its rather than action to enforce summary judgment motion and before ment. us, pension actively repre- tions issue before because in which no one party, and brought timely actions under the interests. fund had sented his employer MPPAA both accomplish this attempting In of the controlled potential members feat, heavily on our discus the Fund relies parties all The relevant were group. There, we Barker & Williamson. sion joined litigation, the fund in the initial so company, to decide whether were asked any attempting not to enforce was Electronics, in a was controlled Sentinel and the limitations withdrawing company, group with under arbitrating disputes so, Williamson, and if whether Barker & Also, yet not run. the issue there had & notice to Barker Williamson constituted company the defendant involved whether F.2d notice to Sentinel. 788 constructive a member the controlled had become at 121. first determined Sentinel We withdrawal, employer’s group prior & had and Barker Williamson become than the defendant had rather whether group pri- the same controlled members of membership its con- terminated plan or to the group prior the withdrawal. trolled Id. at 122-26. gave rise to the action. Therefore, presented question no was deciding that two companies After MPPAA; required arbitration under the “single employer” within the mean were all issues could be decided the court ing of we held that actual its v. Coal Galgay own. See Beaverbrook liability to Barker notice of the withdrawal (3d Co., 137, Cir.1997); 141-42 105 F.3d constituted constructive no & Williamson Flying Tiger Line see also v. Teamsters tice to all other members of controlled Philadelphia, Trust Fund Pension including Id. at 126-30. group, Sentinel. (3d Cir.1987) (distin- 1241, F.2d 1249-50 appeals, like other courts guishing Barker & Williamson from a adopted “notice to to all” one notice in which the issue involved termi- case at applied rule to MPPAA cases. Id. status). nation of controlled 127; also, States, e.g., see Cent. Southeast Fund & Southwest Areas Pension v. Slot Williamson, In Barker & we determined (7th 1369, Cir.1992); ky, F.2d withdrawal, that, at time of the Barker A. A I.A.M. Nat’l Pension Plan & and Sentinel were “brother- Williamson Inc., Indus., F.2d Slyman v. Benefits corporations” sister the Internal (D.C.Cir.1990); Pen Teamsters incorporated Revenue Code standards Trs. Con sion Trust Fund — Bd. W. determining controlled the MPPAA for Co., Allyn Transp. 832 F.2d ference 123; at group status. 788 F.2d see 29 Cir.1987). (9th 506-07 1301(b)(1). Here, Holmes had However, the to one himself of his in his for- principle of “notice divested interests all” & retired to Florida in is notice to announced Barker mer businesses and so it is from certain that such a Williamson does lead conclusion far im- suggested by relationship “brother-sister” could be regarding enforce- judgments. puted & and Kero the time of ment default Barker Further, Williamson, there limita- without first was no statute of the withdrawal.9 9. We passed along even of a ties to Kero to Route note that would be more his relationship companies, find a Resources in the sale of his so stretch to “brother-sister” Resources, Holmes and Route connection between Holmes between fairly company against judg would be attenuat whom the 1995 default and Route Resources though appears ment entered. ed. It

299 Truck, in fact a determining whether Holmes was 822 F.Supp. However, at 1095. group member of the controlled at several against factors counsel reliance withdrawal, as we did Bark- time of the Jersey the New district court cases cited Williamson, er & we would be hesitant Obviously, the Fund. we are not bound apply the “notice to one is to all” notice by the manner in which the Jersey New case, rule on the facts of this let alone district courts interpreted have expand support finding the rule to that a MPPAA and our relevant precedent. Fur- default obtained 1995 is en- thermore, whereas in Able the courts against forceable Holmes.10 Truck and Gotham Fuel indicated that the actions before them were characterized as In an effort provide support further prior actions enforce default rule, judgments, proposed for its the Fund directs our applying such a view in this attention to case would two cases decided district require substantially us to cases, Jersey. courts New those recharacterize the action originally set forth in lower courts extended our reasoning Barker & complaint, as we explained Williamson a “judg- create above. We are simply unwilling ment one to do judgment against Finally, key is all” so. they rule that distinction applied separates to MPPAA con- the facts before us Able Truck and group trolled situations from those at where issue judgment Gotham Fuel and convinces us that sought prior fund to enforce a newly-located member of the Fund is time-barred from proceeding with group controlled within the state statute of this action. The defendants in both of the judgments.11 limitations for enforcement of district court cases conceded Fuel, Gotham 1050; Able F.Supp. membership in the relevant controlled case, Nov.8, 1989) ("[O]wners pointed 10. The Fund has not us to a who sell a business any, we are not aware of in which we have expected cannot be to know of withdrawal applied Barker & Williamson’s constructive liability assessments which are served on concept notice to a situation where an em their successors control has been trans after ployer had severed all ties to the controlled ferred.”). group entities before the trustees sent notice Under the cases facing 11. Other district courts facts similar to examined, application of the "notice to one is presented those apply here have refused to concept only proper notice to all” after statute of limitations other than the one de there regarding has been a determination scribed in the Mississippi MPPAA. See Ware membership group. in the controlled See house, ("[E]ach F.Supp. at 1059 action Williamson, Barker & 788 F.2d at 126-27 brought against alleged group controlled (developing regarding the rule notice after joint member on the basis of and several concluding parties first that the relevant were must be within the ERISA members); controlled see also Bd. of period.... may [A fund] not in Trs. Teamsters Local 863 Pension Fund v. provisions voke ERISA withdrawal while si Foodtown, Inc., 164, (3d 296 F.3d Cir. multaneously appealing to a state statute of 2002) (applying the notice rule after establish judgment.”); limitations for the collection of a ego likening alter status and the situation Esernia, Langone F.Supp. see also v. presented to a group); controlled Trs. of (D.Mass.1994) (considering 218-19 a com Amalgamated Ins. Fund Sheldon Hall Cloth plaint seeking bring original Inc., (3d ing, 1988) 862 F.2d Cir. action and to enforce a (applying noting the notice rule after that the granting summary judgment in favor of defen finding regarding district court proprietor dant sole based on statute appealed); of limi status was not Trs. Chica Drivers, go Helpers why tations and failure to show Truck & the court Warehouse Work pierce (Indep.) corporate ers Union should Pension Fund v. Rentar veil and hold Indus., Inc., (N.D.Ill. proprietor responsible liability). 1989 WL at *4 necessary finding predi- that such a would be a leaving no unresolved issues groups, the require pursuant considering applica- arbitration cate to our even would Thus, rule, were able to MPPAA. those courts and tion of Barker & Williamson statutes of apply the state enforcement any proposed extension thereof. See other implicating limitations without note 10. supra require res- provisions MPPAA that would Indeed, through arbitration. those olution C. emphasized they this fact as district courts to obtain Hoping avoid the need such extending the li- reached their conclusions finding, a Fund seeks to the 1995 judgments ability prior determined in judgment against enforced as- parties before them. See Gotham the new serting challenge to the sale Holmes’s (“It Fuel, at F.Supp. 1048 is conceded 860 companies, saying purpose that the that were, ... as of the date of that defendants transaction was withdrawal liabili- to evade withdrawal, of a controlled members So, MPPAA, ty. under since employ- contributing with the group for the “principal transaction undertaken Truck, er....”); F.Supp. Able avoiding purpose” evading or withdraw- (“Defendants deny not 1093-94 do disregarded, al must be Holmes’s controlled [they] group were members of a ignored. sale should be company at the rel- withdrawing

with [the 1392(c). words, employer other Thus, only contested issue time]. evant might responsible still be for withdrawal timely.”). is plaintiffs is whether action businesses, liability, even his after he sells Here, Holmes sale of his inter- cites the purpose if the is of the sale deemed in all his and his ests businesses retire- bring scope the transaction within Florida, objects vigorously ment to 1392(c). Here, urges he any claim that be deemed a should Holmes’s sale of and his other Kero busi- time group at the controlled member Resources, to Route nesses which occurred withdrawal, leaving us faced with a to Kero’s from the plan, dispute require that would arbitration as liability. not should shield him from We MPPAA, including its stat- dictated theory are unconvinced well. provision.12 limitations ute of we According to we must accept problem think that the ultimate with the assertion, its the first time in its stated for is fact that there position has complaint, that Holmes’s sale of his finding by any no here court or arbi- been companies to Route Resources was under- employer that Holmes or a trator taken so he could avoid withdrawal of the controlled within the member liability under Based meaning of the MPPAA at the time Kero the MPPAA. on that theory “judgment from the conclude that assertion and withdrew Fund. We ’ enforce, against Jersey seeking Because the facts the New an action dis- officer, distinguishable corporation's judgment are trict court cases obtained in basis, previous involving "judg- corpora- not need decide whether the ERISA suit tion). against importing judgment statutory one all” While a basis for ment is adopted by governing concept courts state statutes of enforce- the New MPPAA, generally proper judgment ap- more under the ment of actions does seem parent provi- MPPAA to us as we the relevant whether the allows for "enforcement” read engage to be court at sions of the we will not in a actions in federal all. Thomas, lengthy resolution Peacock 516 U.S. examination and of that Cf. S.Ct. (1996) (conclud- 133 L.Ed.2d issue here. The issue before us is narrower jurisdiction than that. that district courts lack over against all” imply one is under Neither does it that we must enter- group provision, MPPAA’s controlled tain such an action a pension when fund disregard Fund contends that we must guise asserts of enforcing sale, find that he was in Holmes’s conclusive toas thereby with Kero and is responsible liability, the withdrawal We are not persuaded that allow the Fund to enforce the 1995 fund, allows a pension once it has judgment Holmes. against default obtained a default within the six that, proceed- is true in It an arbitration year period, a string to initiate of suits pension finding a fund’s that a defen- ing, against purported members of a controlled in engaged dant a transaction described in anytime in group following twenty year “evade or avoid” of the provision period. especially This strikes us as trou presumption MPPAA is accorded a cor- that, in permit blesome view of the fact if rectness, by proof which must be overcome to avoid ted the MPPAA’s statute of limi by the contrary offered defendant. tations here and force Holmes to litigate 1401(a)(3)(A). 29 And See beyond statutory this matter period, may Fund is correct that a court not evalu- managed the Fund would do so company, already ate whether a which has merely adding a simple paragraph to its deemed to a member been have been complaint alleging that Holmes’s sale of time group the controlled at one his businesses “was to evade or avoid with withdrawal, in a engaged has transac- liability.”14 thing drawal It is one to allow liability.13 Flying Tiger, tion evade See collection of a judgment those However, F.2d at 1247. this does clearly liable, district that we a mean must allow fund to done, quite courts have but another to defendant, a claim bring alleging a bypass sanction an attempt engaged for the first time that he in a provision MPPAA’s limitations and litigate purpose transaction with a evasion and liable, issues related to withdrawal in year thus after the six is limitations the MPPAA has period expired. such action. We hold that belated er, interpreted require We have question statutory the MPPAAto or where the is one of party against that "where the which interpretation. Tiger, with Flying 830 F.2d at liability being certainly drawal is asserted was 1251-54; Galgay, see 105 F.3d at also part employer of the of an time, subject point to the MPPAA at some required accept 14. Even if we would be dispute and where the issues in fall within the Fund’s assertion and consider Holmes a purview provisions explic that MPPAA are member of the controlled until he re- arbitration,” designated itly parties for futes the Fund’s "determination" in arbitra- comply pro must with the arbitration MPPAA tion, we would still conclude the Fund’s resolving dispute. Flying visions their Ti untimely. action was As we have indicated words, ger, 830 F.2d at 1247. other above, complaint that first announces the not, may example, federal district court for beyond Fund's "determination” was filed partic to whether a make determination as Further, year six statute of limitations. ular transaction was undertaken in order to challenging method "determina- rather, liability; or evade avoid withdrawal arbitration, tion” described explicitly issue is one that is reserved for circumstances, MPPAA. Under these find Id.; through resolution arbitration. see also statutory no basis in scheme either the or the However, Galgay, 105 F.3d at 141. a district apply interpreting case law a statute of it may preliminarily court determine whether clearly the one limitations other than delin- applies given entity, at all to eated may in the MPPAAitself. resolve other issues where arbitration irreparable employ- would cause harm Areas Pension & be Southeast Southwest must or avoid” determination “evade (7th Navco, Cir. F.3d asserted, necessary arbi- allowing for the by Bay gov- 1993), grounds proceedings abrogated would on other tration Area, 194, 118 entirely provisions S.Ct. 542. erned 522 U.S. at year statute within the six hand, the MPPAA is the other On in- proceedings that governs limitations which is to be statutory scheme remedial applying the MPPAA. volving protecting in favor of “liberally construed statutory provisions, plain language employee benefit participants raising and time-barred from the Fund is year 127. The discrete six plans.” Id. at Holmes’s of whether litigating the issue goal, re- furthers this Resources companies to Route sale of his pur- expeditiously a fund to act quiring in order to evade was undertaken of a con- from members suing payment avoid Kero’s withdrawal allowing such rather than group, trolled ruling that will asserts our The dissent limi- twenty year languish over a claims to of purpose remedial vitiate Congress Accordingly, period.15 tations injustice pension an to and do MPPAA sufficient time to discover given has funds judgments relat- seeking to enforce funds and closely corporations held owners of liability pay- delinquent withdrawal ed to sales trans- paths complicated trace opinion as But do not view our ments. we encourag- actions, time while at the same true, It is things. of those doing either in a manner that serves ing funds to act observed, that previously we have plan participants. of the the best interests or con- up single-employer, sets a fund “has group, scheme because trolled V. ownership way knowing no District agree with the Because we corporation.” Barker & Wil- closely held have been that this matter should liamson, But made F.2d at 128. untimely, Holmes is entitled dismissed as a case in the context of that observation pay- interim to a reimbursement liability, involving notice withdrawal pend- the action was ments he made while MPPAA, which, given must be under the 4219.31(d) (requiring § 29 C.F.R. ing. See 29 U.S.C. practicable.” “as soon as overpayments to refund plan sponsor 1399(b)(1). Thereafter, fund pension § does not liability). The Fund investigate pre- and years full to has six that, conclusion given the fact our dispute a cause of action to recover pare bring to limitations, it is statute of regarding the in a court. district the withdrawal portion of to return some required 1451(f). to Congress § elected 29 U.S.C. However, the Fund payments. Holmes’s relatively long create the return of certain does assert actions govern to in the District Court’s amounts described adequate funds giving pension violate anti-in- judgment would ERISA’s corporations persons locate and time to 29 U.S.C. provision. See for with- urement potentially responsible are who 1103(c) States, from plan assets (preventing drawal See Central a fund allow sufficient time for participants to emphasize here that we are 15. We see it fit to necessary investigation engage relat- construe this remedial scheme in favor in the entities, always plan participants. This does not identifying potentially but liable ed to way equate construing in a the scheme the fund to do so in to also motivate grants latitude to the funds. wide expeditious manner. Here, plan it is in the best interests of employer). payment of an forts to secure inuring pursuant to the benefit the Fund asserts it Specifically, original order. the in- required should be return matter, final order related to this made Holmes—the re- payments terim dismissing after the Fund’s action based explicitly provided turn of which is limitations, on the statute of the District provi- to the anti-inurement exception attorneys’ Court included these fees and see ERISA, sion 29 U.S.C. paid by costs Holmes in the total amount 1103(c)(3) having to return his —without the Fund was ordered to return to him. costs, payments attorneys’ fees and and The Fund offers two explaining reasons having pay

without interest on the total why erred, it thinks the District Court amount. why it should not have to return that first, portion of the total amount: A. payment notes that the arose from comply Holmes’s failure to with a court agree We with the Fund that order; second, urges permitted should to retain the pay payments assets, are plan now which attorneys’ ments of fees and costs. A few cannot be returned absent a specific statu- necessary more facts are here in order tory exception to the anti-inurement provi- in which pay understand context these that, sions of agree ERISA. We for the made, ments as well as our decision were first reason offered the In keep to allow the Fund to them. the entitled to reimbursement of referring District Court’s first order these arbitration, matter to the costs and fees. Court ordered begin making Holmes to interim withdraw Regardless of disposition the ultimate of al liability payments to the Fund in accor case, obligation the Holmes had an to com- 1399(c)(2). § dance with 29 U.S.C. Fol ply with the District Court’s orders decision,

lowing this Holmes refused to preceded judgment. By refusing its final payments make the interim come had obey to the initial regarding order interim due date that he between the received the payments, Holmes forced the Fund to en- complaint and the date the Court gage litigation in further in order to secure him payments. ordered to make the enforcement of what was at the time a Entry Judg Fund filed a Motion for of of valid order the District Court. The ment, seeking payments, the overdue subsequent determination regarding the Clarification, Holmes filed a Motion for untimeliness of the Fund’s action does not asking whether the Court’s order mandat negate serve to the costs incurred due to backpayments. determining ed the After wrongful Holmes’s failure to make the in- its order had been clear and that payments terim ordered the Court. responsible making Holmes was for the Thus, we will the District reverse Court’s payments, overdue the Court entered judgment insofar as it orders the Fund to delinquent payments for the for payments ordered to reimburse Holmes of pay attorneys’ fees attorneys’ and costs associated with the Fund’s ef- these fees and costs.16 refunds, persuaded by liability 16. Because we are Fund's to withdrawal would bar point, we first need not determine whether previously paid attorneys’ return of fees and provision, ERISA's anti-inurement viewed in costs here. light provisions of other of the MPPAArelated dent, to B. the District Court was correct judg- in its include award interest issue re The second related outlining ment order the amount the District amount involves imbursement Holmes’s reimbursement. of interest and its use Court’s award plan forth in Fund’s interest rate set to be Regarding the interest rate applicable agreement as the interest rate fund an em applied when a reimburses delinquent payments. contributions and lia ployer overpayments for withdrawal that it not be The Fund contends should bility, again Department we look required pay interest on the amount of regulation guidance. for Accord Labor’s reimbursement, and, alternative, in the 4219.31(d), § to 29 ing C.F.R. that the interest rate should be based overpayment must credit interest on the reject market rates. both prevailing We “at the same rate as rate for overdue these to the Fund’s arguments. As liability payments.” In deter withdrawal interest, obligation are bound pay mining apply, what rate should of our court. Huber v. decision See may specified choose between rate Indus., Inc., F.2d Casablanca 4219.32, rate 29 C.F.R. which sets out a (3d Cir.1990) (holding that an ERISA fund essentially equivalent prevail that is may pay on refunds required interest ing market rate for short-term commercial overpayments).17 of withdrawal loans, specified by plan rate Huber, promul a regulation we examined 4219.33, pursuant itself to 29 C.F.R. gated by Department of Labor allow adopt rea which allows ERISA funds to overpay payment for the interest on setting sonable out interests rates rules ments and we deferred apply overpaid that will to overdue or agency’s reasonable construction of Here, provi the MPPAA and the anti-inurement agreement plan sets interest rate 29 C.F.R. sion ERISA.18 See liability 4219.31(d) (“The percent, overdue at ten withdrawal plan sponsor shall cred in con applied and the Court that rate it from overpayment interest on structing judgment see no overpayment date on order. We date ....”); questioning basis for determination. overpayment which the is refunded Chevron, 844, by might 467 104 thé rate be see also U.S. at While set light binding prece- slightly higher prevailing In than the S.Ct. 2778. current Cir.1986), partially abrogated part by, Pipe 17. We that Huber note was abro- Concrete holding Prods, gated, respect separate Cal, to a with & Inc. v. Pen- Constr. Laborers here, by Supreme relevant Court's Cal., deci- 602, Trust 508 S.Ct. sion S. U.S. Brewery sion Milwaukee Workers’ Pension 2264, (1993) (involving L.Ed.2d Co., Brewing Plan v. Jos. 513 U.S. Schlitz constitutionality presump- of the MPPAA’s (1995). S.Ct. L.Ed.2d 932 liability favoring tions determinations made per- by multiemployer plans). We are not urges analysis 18. The Huber’s regard- suaded conclusion that our in Huber point by has been interven undermined ing payment was blow of interest dealt fatal ing developments in this area of the law. Supreme by the Concrete Court's decision in Specifically, the Fund asserts that our discus holding Pipe, as it clear is far from that our upon holding sion in rested Huber our point solely by men- on this was dictated our subsequently abrogated earlier that was case tion of Retail. absent a clear United Supreme decision of Court. See contrary by Supreme statement Employees United Retail & Wholesale Team banc, sitting we Court or our own court en sters No. Plan Union Local 115 Pension McDonnell, Inc., (3d & remain Huber. Yahn 787 F.2d 128 bound rate, over average majority expands market rates time six-year Act’s statute recorded above and govern have been both below limitations not an under- Further, lying percent. ten we note that it claim for liability against problematic employer, seems somewhat for the Fund but deny pension also to challenging being opportunity its own rate as fund an to make factual deter- unreasonable, presumably contin- minations regarding liability while of related entities. apply employers ues to rate delinquent plan

with contributions and The evidence in this case shows liability payments. overdue withdrawal employer liability shifted its among a tan- event, we conclude that the District gled web of foreign domestic and corporate Court’s award of interest at a rate of ten entities, frustrating Trucking Employ- percent proper. (the ees of North Welfare Fund’s “Fund”) pen- continuous efforts to collect

VI. sion under the pre- mechanisms scribed ERISA and the MPPAA. The Accordingly, we will AFFIRM the order majority, by treating the judgment against granting summary the District Court employer, Resources, Route as a nulli- judgment in favor of Holmes and dismiss- ty respect with members the “control untimely. action as We will group,” thus enables the latter to evade judgment also AFFIRM the of the District statutory liability under the Act. I believe Court to the extent that it orders the Fund majority’s that the expansive and unrealis- reimburse Holmes the amount of his interpretation tic of the MPPAA’s statute payments, interim paid, interest he of limitations and its narrow view of the and interest on that amount to be comput- control group contrary to the letter and However, percent. ed at a rate of ten MPPAA, purpose of the as well as the will REVERSE the of the Dis- precedent Therefore, in this circuit. I re- trict Court to the extent that it orders the spectfully dissent. attorneys’ Fund to return the fees and paid by costs Holmes.

I.

ROSENN, Judge, dissenting. Circuit drafting Congress When majority has fashioned a principle legislation key endowed the with several that eviscerates the intent of the Multiem- provisions designed to assist funds ployer Pension Plan collecting liability Amendments Act of in from de- (“MPPAA” Act”) vitally 1980 linquent or “the and or in employers evasive situations pension ability undermines a fund’s to en- such as the statutory case at bar. The (1) judgment against force its a defaulting provides: scheme all trades or busi- employer. Although provides the MPPAA nesses in a group” “control will be treated six-year , for a statute of “single limitations within a employer,” 29 U.S.C. (2) 1301(b)(1); § which to initiate suits for the pension determina- if a fund makes pension tion of the underlying liability, employer it is factual determination that an has respect silent with of judg- enforcement conducted a transaction primary for the ments, leaving aspect existing purpose “evading avoiding” pension state and liability, pension may federal laws. The enforcement of disregard fund (3) judgments requires transaction, 1392(c); often prolonged § inves- 29 if tigations identify in an effort to and an employer disputes find a factual determina- fund, related entities and their pension dispute resources. The tion made 306 Barker & In group. ties in control through

must be resolved arbitration be- Williamson, may proceed, 29 U.S.C. derived from the fore a civil suit (4) 1401(a)(1); § suits an em- employer” and “single principle MPPAA’s liability must ployer to collect withdrawal pension logical corollary that notice of lia- years six of the accrual within entity in a bility provided to one control 1451(f). action, 29 U.S.C. all group constructive notice to constitutes group. 788 F.2d at entities in the control AFL-CIO IUE case the seminal practical necessity noted the for We Williamson, v. Barker Pension Fund & acknowledging that principle, pension Inc., (3d Cir.1986), court 788 F.2d 118 knowing ownership way funds no that a liberal construction recognized closely held arrangements among corpora- provisions pen favor the MPPAA’s court Id. tions. at 128. The reasoned consistent with the statute’s sion funds is that: (citing intent. 788 F.2d at legislative 71, 869, Cong., 96th 2d H.R.Rep. No. Sess. responsible pro- the fund [hjolding reprinted in 1980 U.S.Code Ad. Cong. & viding possible notice to all other enti- 2939). “[cjourts Furthermore, News might subsequently ties that be deemed (and that because ERISA have indicated to be in a controlled with MPPAA) statutes, they are remedial employer corporation place would liberally in favor of should be construed position. fund in In con- an untenable protecting participants employee trast, the stockholders officers Id. v. Smith plans.” (citing benefit corporations certainly ... are aware Trust, Pension F.2d CMTA-IAM they their If choose holdings. ignore PBGC, (9th Cir.1984); Rettig potential liability ... as a of a member (D.C.Cir.1984)). 133, 155 In this F.2d case, majority these disregarded has they then suffer the conse- should rigid guideposts, engages and instead subsequently quences if that issue is de- construction of the MPPAA that incon adversely to them. termined statute, departs with the from the sistent Id. court,

prior holdings of this defies the intent legislative acknowledged MPPAA’s Second, acknowledged Congress courts. this and other employers owing significant pension liabili- ty may attempt obligations to avoid their significant provisions There are two Flying evasive transactions. See through analysis that underlie the MPPAA Tiger Line v. Teamsters Pension Trust First, stipulates this case. the MPPAA Philadelphia, F.2d may funds all trades pension treat (3d Cir.1987). example, a corporate For and businesses under “common control” may entity with pension be sold “single employer.” 29 U.S.C. separate, corporate 1301(b)(1).19 undercapitalized en- employer” This “single tity bankruptcy, thereby that then declares ex- principle allows funds deal frustrating pension a fund’s efforts to col- clusively employer the defaulting with fund, employer. remedy lect from the To this while the same time known practice, that evasive the MPPAA that if assuring legal themselves remedies states against primary enti- of a to purpose can be maintained all related transaction is 1301(b)(1). § utilizes the of "con- enue Code. 29 U.S.C. 19. The MPPAA definition group” prescribed in trol the Internal Rev- law, liability, argues pen or a the Fund that because pension avoid” “evade transaction, a claim a may disregard against member of the sion fund 1995, employer “liability shall be determined and col control it has limitations, to such statute regard transac satisfied MPPAA lected ... without 1392(c). Notably, leaving § if bring present Fund free tion.” U.S.C. as an disputes pension fund’s deter suit Holmes action to enforce employer primarily judgment. that a was the 1995 mination transaction pension to “evade or lia conducted avoid” A. arbitration

bility, employer must seek before dispute to this factual resolve Through a combination stock and may continue. 29 U.S.C. proceeding court trust, Holmes was owner of Holmes Line, 1401(a)(1); 830 F.2d Flying Tiger § (“HTI”), Inc., Transportation, Kero Leas- arbitration, Congress Once in at 1248. (“Kero”) ing Corp. per- and other related pen in favor of tipped further the scales 1988, proprietorships.20 sonal Holmes granting presumption funds sion transferred his interest these related by the any factual determination fund is Resources, companies to Route Canadi- correct, by a employer unless the shows company. holding an-owned The Fund of the evidence preponderance points significant to evidence in the record clearly finding was “unreasonable fund’s indicating that Holmes’ transaction was 1401(a)(3)(A). 29 U.S.C. erroneous.” intended to For pension liability. evade interpreted Supreme Court has The example, originally signed Holmes a col- place persuasion language burden agreement lective bargaining with the employer during to “dis on the arbitration No. ofMay Teamsters Local 560 in Union challenged factual determination prove a 1985, constituting personal his initial Pipe preponderance.” Concrete promise payments to make Fund. California, Inc. v. Products Construc Then, several later in months October tion Laborers Pension Trust Southern 1985, incorporated Holmes Kero and as- California, 508 U.S. 113 S.Ct. (and signed agreement the corre- (1993). 2264, 124 L.Ed.2d 539 liability) to it. At sponding pension apparent except point, Kero had no assets II. bargaining agreement. bare collective attempt position may may case In what further The been liabilities, isolate arguments support boiled down to two assets from the record large from indicates that Holmes transferred a pension its claim collect Mass., Framingham, of real DefendantyAppellee piece Robert Holmes estate (“Holmes”). million, First, matter, from HTI to him- as a factual the worth over $10 personally in participated Fund asserts that in a self December to Route conducting intended to “evade or avoid” the sale Resources. transaction Next, Congress HTI’s remain- pro- transferred corporations shell may in the disre- assets into two vided to Route gard the transaction and treat Holmes as a facilitate the sale Resources. stock, may continuing group. control Kero’s which be better charac- member 1392(c). Second, pension liability, as a as the large matter terized capacity personal corpo- bring Fund is able to an action Kero in his without operated personally pro- he protection. because rate prietorships under control with common year period herring. a red Interest sepa- to Route Resources then transferred ingly, contain- in this noted rately corporations from the now the District Court case ing Anthony eventually the assets. Matarozzo when Fund, responded prison he was in sale, displayed Despite serving sepa a for theft from a sentence initial to remain involved with the intent pension rate Bd. fund. Trustees of of manage- a through year fifteen companies N. Trucking Employees $4,725,000, of Welfare consulting ment contract worth Fund, Fund v. Inc. — Pension Kero Leas part included as of the sale which was al., 98-1476, Corp., op. et No. slip Yet, parties away agreement. walked (D.N.J. 26, 1999). Oct. agreement only single from after $78,750 covering payment three months While the actual determination of wheth- surprisingly, bankrupt- Not services. er this was intended transaction to “evade cy appointed for HTI estate trustee or avoid” is matter for pension opined that the Route Resources transac- arbitration, presented by the claims upon tion made consider- “was insufficient Fund the District and reinforced Court Trucking Employees ation.” North Jer- facially a factual determination of support sey Inc. v. Real Route USA Welfare evasive intent. This determination should Estate, Inc., 90-4489, at 2 slip op. No. not be undermined Holmes’ dubious (D.N.J. 23,1991). May effort invoke the statute limitations. point during At some either

negotiation alleged of the sale or soon B. closed, after the transaction Kero and/or After years chasing of frustration from stopped making pay- Route Resources phantom owners, Kero’s the Fund decided July 1989, shortly In to the Fund. ments tactics, counsel, to switch retain new purchase agree- after the execution address in court. the matter The Fund’s ment, capi- Resources conveyed Route brought new an action counsel the U.S. Matarozzo, tal Anthony of HTI to stock District for the District Jer- Carrier, the owner of Arrow Inc. Six sey in April of 1995 Route Re- later, petition HTI months filed in bank- companies sources and its related to collect ruptcy. liability, again following immediately after stopped Almost Kero MPPAA procedures. Route Resources did making pension payments, the Fund did respond not complaint, and the Dis- to follow this elusive chain of own- best trict Fund Court awarded the a default ership and serve notice withdrawal lia- judgment. parties bility appropriate on the as re- quired MPPAA. argues under the The Fund’s that because the 1995 six-year suit was efforts included several notice letters sent within stat- from 1990 as ute of through Matarozzo well as letters sent to Route Resources it satisfied the statute of limita- Leasing at their ad- tions as entities in Kero last known to all other the same response “single The Fund no control due to the group, employ- dresses. received finally principle. until when Matarozzo in- er” The Fund claims that be- purchase Fund that his HTI cause formed the the MPPAA allows the Fund to treat from did all single Route Resources include entities a control entity, one Kero or Kero’s there can be entity. short, of Matarozzo pursuit single “judg- over a three South, (2nd Inc., one all.” against judgment against Developers ment is 933 F.2d 131 Cir.1991)). Therefore, litigation against all future oth- The use of “con- the word in even group, the same control noteworthy, er entities strued” is as it shows a will- new under the postured if claims ingness among the courts to com- read MPPAA, should enforce- be construed as plaints liberally plaintiff when a seeking is against the entities ment actions different prior judgment to enforce a “al- under an “single the comprising employer.” theory, or ego” statutorily ter the analo- gous “single employer” theory. by bringing Fund believed that The against one the con initial suit member of Although complaints the in filed Able it group, satisfy trol would Truck part and Gotham Fuel are not a further provide statute of limitations and case, the record in this counsel for the investigate history the complicated time to at argument Fund certified oral us before transactions to re private find other that she involved in prior was those cases satisfy judgment. sources to The Fund on behalf of the Fund. She stated that justified in was this belief because courts those she filed substantially cases consistently in this circuit have held that same complaint pres- she filed permissible approach explanation, ent case. Based counsel’s Specifically, MPPAA. this same supported by which is further language plaintiff fund cases was two courts in district Gotham Fuel and court, Jersey rais before the district “construing” Able complaints Truck ing identical In Bd. almost claims. actions to appears enforce it Trucking Employees Trustees N. complaints in all of these cases Fund, Jersey Inc. v. Fuel Gotham Welfare filed Fund used the same terminol- (D.N.J.1993) F.Supp. Corp., 860 However, cases, ogy. previous Employees Trucking and Bd. Trustees courts were Inc. Able Welfare N. persuaded pursuant single Corp., Truck 822 F.Supp. Rental employer concept adopted by the Third (D.N.J.1993), Judges and Ackerman Williamson, supra, in Barker & Circuit Lifland, respectively, held that under liability judgment one withdrawal MPPAA, members of a control are group can exist members of a con- Thus, “statutory egos.”21 alter as courts group. trolled that all follows cases, other ego” held “alter actions subsequent against different Ackerman and Judges Lifland determined ac- members of are the Fund’s claims should “con judgment previously tions to enforce the judgment” strued as actions enforce entered....” timely underlying will “if be considered Truck, corporation timely F.Supp. action was Able at 1095. The case, subsequent opinion present and the action to the District in the pierce here, veil to corporate majority enforce the as affirmed eviscer- brought concepts within the ates set forth in & Barker Truck, Williamson, judgments.” imposes highly enforcement of Able techni- added) (cit F.Supp. (emphasis pleading requirement cal that frustrates Passalacqua Resnick the intent of the MPPAA. Wm. Builders v. letter and argument provision 21. This should not with members of a control be confused makes ego claim com- egos. alter under state "statutory” alter employer” "single mon law. MPPAA’s suit to present judgment applies prohibit the majority here would The judgment. N.J. Stat. partly debt be- enforce the collecting its Fund from express the 2A:14-5. adequately to Ann. cause it failed in judgment” words “enforcement magic However, if this court even III. complaint.

its rule, requir- pleading a strict impose would attempts distinguish to majority The that an action explicit statement ing an facts Fuel on the Truck and Gotham Able judgment under enforce a seeks to cases, membership noting that in those by ERISA, by the complaint filed here by conceded group in control require- meet that arguably Fund would case, defendants, present in the while pled for all of the The claim relief ment. status. group his control Holmes contests for enforce- required predicates factual that because majority further holds The acknowledg- including ment of filing to this suit years expired prior six judgment against Route the 1995 ment of Holmes, prohibit- the Fund is now against 17), a factual deter- (paragraph Resources remained a asserting that Holmes ed from part of the that Holmes remained mination to his sale group control member because transac- due to his evasive group control was intended evade Route Resources 24), statutory and a basis tion (paragraph effectively blocking the liability, avoid judg- liability for the joint and several assets. Both reaching Fund from Holmes’ among all control members ment the mark. arguments miss these (paragraph MPPAA under the required 31).22 A. plead- majority’s narrow view The First, Truck and by distinguishing Able impractical extension ing, coupled with dispute of Fuel based on Holmes’ Gotham re- statute of limitations of the MPPAA status, majority his control underly- actions to enforce an quiring that in a that it need not decide states footnote brought also within ing judgment must “single crucial issue of whether severely pur- limits the six-year period, theory requires “judgment employer” believe, agreement I pose of the Act. Yet, judgment against all.” against one is Fuel courts Gotham with the district view, effectively resolve my cannot we Truck, that Fund satisfied and Able crucial deciding this appeal without of limitations when it the MPPAA statute legal question. Route original against suit Therefore, resolving whether importance under the The Resources in 1995. law, one is twenty “judgment applicable New by disagreement highlighted for enforcement all” is year statute of limitations legal theories that the attempt justify position interpreted as alternate In an pursued. Given the silence in complaint cannot be read as an enforce- action, regarding judgments majority length enforcement of discusses at ment resolve, attempt par- and this legal steps that can be now taken the Fund experience past in Gotham interpreted pursue ticular Fund’s to show an intent Truck, surprising that through Fuel and it is not a new action under Able pursued multiple theories of liabili- the Fund MPPAA.I believe that the actions referenced penalized majority prohibit ty. Fund should not now be the Fund from The do litiga- comprehensive approach to this asserting for its that its current action is intended tion, Rather, response of which was initiated judgment. the mul- much enforce early rulings in the tiple allegations put to the District Court's forth against Holmes are better case. describe its claim among several district courts across the issue and fails to operative address the For country. example, both District legal principle at bar. majority posi- majority and the opinion this case tion essentially means that if a defendant support draw from a case decided in the challenges underlying his liability in an Illinois, Northern District of Central action to enforce an MPPAA judgment, he States, Areas Southeast Southwest can obtain the benefit of an abbreviated Mississippi Pension Fund v. Warehouse statute of limitations. a legal Such con- (N.D.Ill.1994). Corp., F.Supp. 1053 cept law, has no basis in the nor should it. Although majority attempts to distin guish Mississippi Warehouse from Able B. facts, Truck and Gotham Fuel even cursory reading of Mississippi Ware Second, majority acknowledges that house shows a fundamental legal differ the MPPAA requires disputes involving ence between these cases. The district provision “evade or avoid” to be re- court in Mississippi plainly Warehouse solved through arbitration. 29 U.S.C. disagreement stated its with the New Jer 1392(c), 1401(a)(1). §§ However, the ma- sey adopt cases and refused to the rule jority adopts the sequitur non that because construing secondary suits as enforcement process resolving the “evade or the “single employer” theory, claims under avoid” prescribed issue is under regardless of whether the defendant con framework, MPPAA statutory six-year ceded or contested control status.23 statute of applies limitations also as a bar F.Supp. at 1058. resolving absolutely issue. There is Furthermore, majority’s effort support no the MPPAA or the distinguish Jersey the New district court case law for proposition, and the ma- Mississippi cases from Warehouse and the jority cites none. present case based on the defendants’ dis- The statute of the MPPAA pute of their control group produces status clearly refers “action[s] legal anomaly. untenable The determi- 1451(f) this section.” 29 (empha- U.S.C. nation of whether statute of limitations added). hand, sis On the other affected, bars a suit cannot be as the ma- MPPAA’s provision requires arbitration allows, jority by whether the defendant that “disputes between an employer and concedes or denies underly- plan sponsor ... concerning a determi- ing suit. The operation of the statute of nation made under sections 1381 through legal concept, limitations is a completely 1399 of this title through shall be resolved separate from the defendant’s underlying 1401(a)(1) arbitration.”24 defenses, U.S.C. or majority’s lack thereof. The added). 1401(a)(1) (emphases willingness to Section re- uphold interpreta- a narrow “disputes” fers to concerning tion of the MPPAA “determina- statute of limitations liability, those who concede tions” because the items in yet sections 1381 apply a interpretation through broader when the 1399 are all determinar factual underlying liability disputed, confuses tions that the MPPAA entrusts to the 23. Mississippi The court in provision, Warehouse "evade or avoid” recognized 1392(c), the factual distinction from the applicable range falls within the footnote, cases in a while discuss- through thereby designat- sections 1381 ing disagreement extensively on the law subject it as a determination to arbitra- body opinion. F.Supp. tion. 1058, n. 2. control These de actions other of the Fund. factual future

discretion terminations, applicable governed by whether a transac to be such as members lia statute of limitations for enforce- to “evade avoid” state law tion was intended If, judgment. suggest, action in and of as I bility, are causes of ment of affirmative, the current ac- subject to the MPPAA statute answer is then themselves Rather, tion as an Supreme proceed limitations. should be allowed Pipe, enforcement suit. The MPPAA would acknowledged Concrete recognition the Fund’s they require are “factual determinations” to be then fac- should before a civil tual determination that Holmes through resolved arbitration 629, 113 a member the control may proceed. group 508 U.S. at treated as of suit primarily intended majority’s expansive ap because his sale was to S.Ct. The avoid” If of the statute of limitations cover “evade or Holmes plication claim, dispute finding, that factual original not but also wishes to he may arbitration, ability required make factual so in as to determina do proceeds regarding tions an evasive transaction before the claim toq Line, Tiger part Flying of effort enforce District Court. contrary to a construction of 830 at 1248. reasonable F.2d Also, contrary the statute. it is to this to acknowledged duty interpret

court’s IV. liberally ERISA and the MPPAA as reme majority that allowing The contends Williamson, dial statutes. Barker & this proceed against suit F.2d at 127. such manner a “belated” would some- majority ultimately I believe that Holmes, how that he given unfair sold in its of the MPPAA interpretation errs his in 1988 retired to companies and Flor- question treating the of whether Holmes approach punishes ida. This the Fund for of control can be considered a member delayed action, and investigation legal group majori- as the issue. threshold despite and evidence Route ty regardless holds that of whether the may engineered a Resources scheme aby statute of limitations will be satisfied designed to conceal from the assets Fund timely a prior, against claim member of culpable detection of the obstruct en- may group, particular the control this suit tities. court has on several Our held oc- proceed the statute limita- because of factual casions that determinations re- asserting tions bars the from Fund left garding evasive transactions are Holmes is still a member of control pension funds and to decide. arbitrators group against prior judgment whom The Fund’s factual determination should may be I ap- enforced. believe that this disregarded granting summary not be advised, proach given ability is ill judgment on the of an affirmative basis employers corporations close to hide a defense. Such decision denies Fund a their evasive intent behind thicket opportunity set in the Act forth may private transactions take several challenge evasive and fraudulent transac- years to occurred untangle, as in this case. only verify tions transfers. need We limited legal Our review should be Holmes was member of the control question “single time employer” whether at some Fund, requires principle timely . that claim from the and leave the resolution of dispute one control member satisfies factual to arbitration. See limitations, leaving Trucking Employees the MPPAA statute of Bd. Trustees Inc. — Pension N. Welfare (3d LORILLARD Centra, v. TOBACCO 983 F.2d COMPANY a

Cir.1992). corporation, Appellant in Delaware should limit its This court question quiry legal of whether v. statute of bars Way BISAN FOOD end, CORP. majority To that fash suit. has d/b/a Supermarket, Sayam, Ali limit that Hamed six-year applies ioned time Sayam, Sammy pension original un J. Abdul fund’s suit on the claim, well derlying as all efforts to Company Lorillard Tobacco

enforce a entities later corporation, Delaware determined to be members of the control Appellant group. encourages Such a rule employers impede lawfully the collection monies due and negates funds the arbi Liquor Store; Rodriguez Edwin Anna tration provisions the MPPAA for the factual determinations of whether mem Company Lorillard Tobacco group engaged in eva bers control corporation, Delaware sive and fraudulent schemes. Appellant MPPAA intended such a result. never Furthermore, based, majority’s rule is part, unsupportable ground on the Corp. Krauszer’s; John Doe d/b/a applies only where a situations defen Subhash Patel. disputes dant control status yet conclusively has not been determined 03-3151, 03-3160, No. 03-3161. result, by a court or arbitrator. As Appeals, United States Court of majority illusory dichotomy establishes Third Circuit. legal that avoids operative issue.

I would affirm this line of circuit’s Argued June 2004. by following precedent cases July Filed set Barker & Williamson. would I hold judgment against one control group member shall be deemed all, construe Fund’s claim as an action judgment, to enforce the vacate summary judgment against the Fund in proceeding, and remand the case proceedings

the District for further Court opinion.25 consistent with this my analysis 25. Because of this would issue of is entitled case reach the whether Holmes attorneys’ payments vacate the District I do not to interest fees

Case Details

Case Name: Board of Trustees of Trucking Employees of North Jersey Welfare Fund, Inc.-Pension Fund v. Kero Leasing Corp.

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 12, 2004

Citation: 377 F.3d 288

Docket Number: 03-2176, 03-2344, 03-3283, 03-3448

Court Abbreviation: 3rd Cir.