A multiemployer pension plan (and its trustees, but we can ignore them) sues in this case to enforce withdrawal liability against an individual. The Multiemployer Pension Plan Amendments to the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq., require that when an employer withdraws from a multiemployer pension plan governed by ERISA, the plan assess a withdrawal liability against him, 29 U.S.C. § 1396, so that the financial burden of his employees’ vested pension benefits will not be shifted to the other employers in the plan and, ultimately, to the Pension Benefit Guaranty Corporation, which insures such benefits. To trigger application of the statute, the pension plan must issue a notice, and a demand for payment, of withdrawal liability to the employer. § 1399(b). If the employer wants to contest the assessment he must first complain informally to the plan within 90 days. § 1399(b)(2)(A). If he obtains no satisfaction from this mandatory conciliation procedure he must initiate arbitration — the method prescribed by the statute for resolving disputes concerning assessments of withdrawal liability — within 60 days after the earlier of either the plan’s response to the employer’s initial complaint, or 120 *1372 days after the employer, as part of the conciliation procedure, requests additional information from the plan regarding the assessment. § 1401(a)(1). Should the employer fail to request arbitration within the deadline the amount of withdrawal liability assessed by the plan becomes due and owing and the plan can (as here) sue to collect it. § 1401(b)(1).
Stevens Bedding Warehouse, Inc., of which Burton Slotky, the defendant in this case, had become the sole shareholder, withdrew from its ERISA pension plan on August 22, 1987, five days after filing for bankruptcy under Chapter 11. On September 30, the plan filed a claim against Stevens Bedding in the bankruptcy proceeding for withdrawal liability of (in round numbers) $164,000. On April 15 of the following year the plan mailed Stevens a notice and demand for the same amount. Three days later it filed a new claim in the bankruptcy proceeding, which in the interim had been converted from Chapter 11 to Chapter 7. Stevens received the April 15 mailing on May 3. Stevens did not contest the assessment. Nor did Slotky, although the statute provides that “trades or businesses” under “common control” are a single employer for purposes of withdrawal liability, § 1301(b)(1), and the buildings in which Stevens carried on its business had been leased to it by Slotky. The plan never mailed or otherwise delivered a notice and demand (or a copy of one of the notice and demands it had sent Stevens) to Slotky. But it argues that notice to one trade or business under common control is notice to all and that since Slotky did not initiate arbitration by the statutory deadline the amount that the plan had assessed became due and owing from him. The district court, agreeing, granted summary judgment for the plan and entered judgment for the assessed withdrawal liability, plus interest and other costs allowed by the statute, for a total of more than $224,000. The excess over the withdrawal liability of $164,000 is accounted for by interest, liquidated damages, attorneys’ fees, and the usual court costs.
Slotky may never have heard of withdrawal liability or the concept of a commonly controlled group, may never have dreamed that he might be deemed the employer of Stevens’ employees and might therefore become personally liable for the corporation’s obligations to the multiem-ployer pension fund, was not told (at least by the pension plan directly) — till too late— that he might have this liability, was denied a trial on whether his leasing of buildings that he owned made him a trade or business, and has lost all opportunity to show that the amount of the assessment is in error. Nevertheless we agree with the district judge that the pension plan was entitled to judgment in the amount of the assessment plus the statutory add-ons such as attorneys’ fees. The plan followed the correct procedures, the controlled group provision applies (and this issue was properly resolved on summary judgment), and Slotky has failed to establish a basis for equitable tolling of the deadlines for conciliation and arbitration.
We do not understand either the pension plan or the Pension Benefit Guaranty Corporation (which has filed an amicus brief in support of the judgment) to be arguing that the question whether someone is a member of a controlled group is reserved for arbitration, even though the statute requires that all disputes between the employer and the plan be resolved by arbitration, 29 U.S.C. § 1401(a)(1), including some that might be thought jurisdictional.
Republic Industries, Inc. v. Teamsters Joint Council No. 83 of Virginia Pension Fund,
Anyone who suspects that he might be adjudged a member of a controlled group and therefore subjected to withdrawal liability would be well advised to commence arbitration, so that if a court holds that he is a member of such a group and hence is subject to such liability he won’t have waived the issues that are reserved for arbitration, as Slotky (we shall see) did here.
IUE AFL-CIO Pension Fund v. Barker & Williamson, Inc.,
It does not follow that a person can always sit back and wait to be sued for withdrawal liability and take his chances on the court’s deciding the issue in his favor. What if the pension plan explicitly notifies the person of his potential liability, rather than notifying another member of the (alleged) controlled group? What if, like Slotky but unlike the Easter Bunny, he knows or should know that he might very well be deemed a member of a controlled group? In both cases it can be argued that the statutory policy of encouraging the prompt, nonjudicial resolution of disputes over withdrawal liability requires the alleged member of a controlled group to institute arbitration on penalty of losing all opportunity to contest his membership.
But this we need not decide. The courts can resolve some disputes over membership in controlled groups (our Easter Bunny case, for example); the plan appears to concede, whether improvidently or not, that this is one of them; and we do not think that the question whether the district court should stay its hand when the alleged member of a controlled group had notice of the allegation of membership is jurisdictional, so that we must disregard the concession. For purposes of our appellate review, therefore, the question whether Slotky was a member of a controlled group was properly before the district court. The next issue is what kind of question it is, fact or law. It is a question of fact, even though all the “facts” as a layman would perceive them are agreed upon and the only dispute is over characterization, here over whether Slotky’s act in leasing buildings to Stevens Bedding made him a “trade or business” (there is no doubt that he and Stevens were under common control within the meaning of the statute). The application of a legal standard to undisputed facts is classified as a fact for purposes of delimiting the respective spheres of trial and appellate court.
United States v. McKinney,
Factual disputes are not supposed to be resolved on summary judgment. The purpose of the summary judgment procedure is to determine whether there is a (material) factual dispute, in which event
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there must be a trial. Fed.R.Civ.P. 56. That is the general rule, all right, but it doesn’t make much sense in a case in which the only “factual” issue is one of characterization, that is, of application of undisputed lay facts,
and
the opponent of summary judgment claims no right to a jury trial. For then both the record and the factfinder are the same in the summary judgment proceeding as they would be in a trial. There is no more evidence to put in and no different trier to evaluate it. When both these conditions are satisfied, the formally “factual” dispute is properly resolved on summary judgment.
Dimmitt & Owens Financial, Inc. v. United States,
Properly resolved on summary judgment and also correctly in this case, though Slotky argues that he held the buildings as a mere nominee of Stevens Bedding, equivalent to a trustee. It is commonplace for a person or firm that wishes to be inconspicuous to its creditors to lodge title to its assets in a nominee, who like a trustee holds bare legal title, the nominator being the equitable owner. Ill.Rev.Stat. ch. 17, ¶ 1676;
American National Bank & Trust Co. v. Weyerhaeuser Co.,
Third and most important, since almost the entire purpose of the Multiem-ployer Pension Plan Amendments is to prevent the dissipation of assets required to secure vested pension benefits, the use of a controlled nominee to screen assets from creditors is just the sort of device at which the controlled group provision is aimed. We take it that the purpose of limiting controlled group membership to persons engaged in trades or businesses is to protect the owners of corporations from having to dig into their pockets to make good the withdrawal liability of their corporations. Only if a person owns more than one corporation or other business entity is he in danger — and he must own the corporation in the sense of controlling it; it is not enough that he own some stock in it. 29 C.F.R. § 2612.2; Treas.Reg. § 1.414(c)-2. Slotky, however, wasn’t sued merely because he was the sole shareholder of Stevens. That established his control over only one trade or business. He was also the proprietor of a real-estate business that, incidentally but inessentially — for there is no requirement that the trades or business under common control be related,
Board of Trustees v. Lafrenz,
Slotky had withdrawal liability and the next question is whether the notice of this liability was adequate, and so started the *1375 countdown for challenges to the amount of that liability. There were two notices — one filed in the bankruptcy proceeding, and another sent later directly to Stevens — and if either was adequate, even the later one, Slotky is out of luck, because he never initiated the dispute resolution process created by the statute.
We, like other courts, have held that notice to one member of a controlled group is notice to all.
Trustees v. Central Transport, Inc.,
From all this it should be clear that the requirements of due process are met in this case. We are far from the artificiality of presuming notice from newspaper publication, a presumption rejected in
Tulsa Professional Collection Services, Inc. v. Pope,
Slotky argues that the notice (directly to Stevens, indirectly to him) was defective as to form, because it didn’t set forth a schedule of payments of the assessed liability, as the statute requires. 29 U.S.C. § 1399(b)(l)(A)(ii). The notice was directed not at him, however, but at Stevens, a bankrupt, and such a schedule would have been otiose, because the bankruptcy court would inevitably establish its own, supervening schedule for payment of all debts of the bankrupt to all creditors. That is not much of an answer to Slotky’s objection, though, since the plan argues (and we agree) that notice to Stevens is notice to Slotky. There must be adequate notice to the latter even if the unfortunate position of the former as a bankrupt makes it less than interested in the details of its liability. But in the end the argument is of no consequence because the schedule of payments was in fact attached to the notice and demand that the plan mailed Stevens.
There is a deeper objection to Slotky’s argument concerning the adequacy of the plan’s bankruptcy claim as notice under the Multiemployer Pension Plan Amendments. The objection is the second notice and demand to Stevens, the one sent directly, that is, outside the bankruptcy proceeding. That notice makes the bankruptcy filing academic. But we shall soldier on, and *1376 consider for future reference two more arguments by Slotky about the plan’s filing in the bankruptcy court: that it violated Bankruptcy Rule 3001(c), which requires that a claim based on a writing be accompanied by the writing, and that it violated the automatic stay in bankruptcy. 11 U.S.C. § 362.
The first argument is no good even if we assume that the pension fund’s claim was based on the collective bargaining agreement as well as on the statute, so that Rule 3001(c) applied (maybe). It is no good because a technical violation of the bankruptcy rules would not invalidate the pension fund’s filing as effective notice under the Multiemployer Pension Plan Amendments.
As for the automatic stay, there is admittedly an analogy between an outright suit against the bankrupt, which would incontrovertibly violate the stay, § 362(a)(1), and a notice and demand that kicks off a sequence of conciliation and arbitration which may well result in an arbitrator’s order — equivalent to, because enforceable by, a legal judgment — against the bankrupt. The analogy may fail, for while the automatic stay probably applies to arbitra-tions equally with adjudications,
In re T.D.M.A., Inc.,
The last question is whether the deadline for arbitration should be deemed equitably tolled, as in
Banner Industries, Inc. v. Central States, Southeast & Southwest Areas Pension Fund, supra,
In
Banner,
the employer responded to the pension plan’s notice of withdrawal liability and demand for payment by bringing a suit for a declaration that it was not
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liable because it was not an employer within the meaning of the statute. We held that the district judge had not been unreasonable in concluding that the filing of the suit suspended the time for initiating the conciliation and arbitration procedure. In
Central Transport,
the employer was in bankruptcy and the pension plan filed a claim in bankruptcy which the employer contested. We held that the filing of the claim tolled the time for seeking conciliation and arbitration. Both decisions can be questioned, given Congress’s evident desire that challenges to withdrawal liability be resolved quickly, given that the employer could pursue his judicial and arbitral remedies simultaneously, as suggested in
IUE AFL-CIO Pension Fund v. Barker & Williamson, Inc., supra,
and given, therefore, that it would not have been infeasible for the employer to commence arbitration. These things were true in
Central Transport
even though the employer was in bankruptcy, since the automatic stay does not prevent legal action by as distinct from against the debtor,
Martin-Trigona v. Champion Federal Savings & Loan Ass’n,
The Pension Benefit Guaranty Corporation asks us to reexamine our two decisions in light of these criticisms. But the criticisms are disabling only if the decisions are read broadly; and we read them narrowly. In
Banner,
it was unclear at the time the employer sued that the issue he wanted to present to the district court was arbitrable. The district court thought that in these circumstances he should not be forced to bring two proceedings at once; and we upheld this discretionary determination. In
Central Transport,
the other members of the controlled group had reasonably believed that they could obtain an authoritative determination of their liability in the bankruptcy proceeding. The two cases should probably be regarded as transitional decisions in which uncertainties about the law made judges hesitate to penalize litigants for having made questionable procedural choices. There is nothing like that here. The pension fund filed a claim in the bankruptcy proceeding in order to preserve its rights against Stevens Bedding, and then as was its right proceeded against another member of the controlled group outside of bankruptcy. Slotky neither invoked the statutory procedure for conciliation and arbitration nor sought a judicial declaration that he was not liable because he was not a member of the controlled group. He waited until he was sued— having till then emitted nary a peep to suggest that he was contesting the assessment of withdrawal liability. He thus failed to display due diligence, a precondition of equitable tolling.
Webb v. Indiana National Bank, supra,
Slotky raises other issues but only one requires mention, and that briefly— whether interest, liquidated damages, and attorney’s fees were properly added to his withdrawal liability on the authority of 29 U.S.C. § 1132(g)(2). These are mandatory add-ons in (successful) suits to enforce section 1145,
Central States, Southeast & Southwest Areas Pension Fund v. Gerber Truck Service, Inc.,
Affirmed.