821 F. Supp. 1266 | N.D. Ill. | 1993
MEMORANDUM OPINION AND ORDER
Plaintiffs Central States, Southeast and Southwest Areas Pension Fund (the “Fund”) and one of its trustees brought this action against defendant Bell Transit Company (“Bell”), which formerly had employees who are participants in the Fund. Count I is a claim for withdrawal liability under the Employee Retirement Income Security Act of 1974, as amended by the Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. § 1001 et seq. In Count II, plaintiffs seek to vacate an arbitration award finding that defendant had not incurred withdrawal liability. In a counterclaim against the Fund, Bell seeks a refund of interim payments of withdrawal liability made while the arbitration proceeding was pending. Presently pending are cross-motions for summary judgment. Plaintiffs move for summary judgment on Count II. Defendant moves for summary judgment dismissing plaintiffs’ entire complaint and awarding relief on defendant’s counterclaim.
The material facts of this case are not in dispute. Prior to May 1, 1987, Bell had been a party to certain collective bargaining agreements with the International Brotherhood of Teamsters. Those agreements required that Bell make pension contributions to the Fund on behalf of certain employees. On May 3, 1987, Bell sold its covered operations and ceased to have any obligation for further contributions. Bell sold substantially all its assets to Best Transport, Inc. (“Best”) which agreed to be bound to make pension contributions for former Bell employees. By July 31,1987 at the latest, Bell had converted all of its assets to cash. Although it filed papers indicating that it intended to distribute the cash to its shareholders, it has not done so. Bell continues to hold the cash.
The cessation of Bell’s operations ordinarily would constitute a complete withdrawal from the Fund. Bell, however, will not be subject to withdrawal liability if the requirements set forth in 29 U.S.C. § 1384 are satisfied. That statute provides:
(1) A complete or partial withdrawal of an employer (hereinafter in this section referred to as the “seller”) under this section does not occur solely because, as a*1268 result of a bona fide, arm’s-length sale of assets to an unrelated party (hereinafter in this section referred to as the “purchaser”), the seller ceases covered operations or ceases to have an obligation to contribute for such operations, if—
(A) the purchaser has an obligation to contribute to the plan with respect to the operations for substantially the same number of contribution base units for which the seller had an obligation to contribute to the plan;
(B) the purchaser provides to the plan for a period of 5 plan years commencing with the first plan year beginning after the sale of assets, a bond issued by a corporate surety company that is an acceptable surety for purposes of section 1112 of this title, or an amount held in escrow by a bank or similar financial institution satisfactory to the plan, in an amount equal to the greater of—
(i) the average annual contribution required to be made by the seller with respect to the operations under the plan for the 3 plan years preceding the plan year in which the sale of the employer’s assets occurs, or
(ii) the annual contribution that the seller was required to make with respect to the operations under the plan for the last plan year before the plan year in which the sale of the assets occurs, which bond or escrow shall be paid to the plan if the purchaser withdraws from the plan, or fails to make a contribution to the plan when due, at any time during the first 5 plan years beginning after the sale; and
(C) the contract for sale provides that, if the purchaser withdraws in a complete withdrawal, or a partial withdrawal with respect to operations, during such first 5 plan years, the seller is secondarily liable for any withdrawal liability it would have had to the plan with respect to the operations (but for this section) if the liability of the purchaser with respect to the plan is not paid.
(2) If the purchaser—
(A) withdraws before the last day of the fifth plan year beginning after the sale, and
(B) fails to make any withdrawal liability payment when due, then the seller shall pay to the plan an amount equal to the payment that would have been due from the seller but for this section.
(3)(A) If all, or substantially all, of the seller’s assets are distributed, or if the seller is liquidated before the end of the 5 plan year period described in paragraph (1)(C), then the seller shall provide a bond or amount in escrow equal to the present value of the withdrawal liability the seller would have had but for this subsection.
(B) If only a portion of the seller’s assets are distributed during such period, then a bond or escrow shall be required, in accordance with regulations prescribed by the corporation, in a manner consistent with subparagraph (A).
(4) The liability of the party furnishing a bond or escrow under this subsection shall be reduced, upon payment of the bond or escrow to the plan, by the amount thereof.
29 U.S.C. § 1384.
The Fund does not contend that the requirements of subsections (A), (B), and (C) of subsection (1) have not been satisfied.
In 1990, the Fund determined that Bell was subject to withdrawal liability because it had liquidated without providing a bond or escrow as required by subsection 3(A). Bell
First, the proper standard of review must be determined. The Fund contends that the presumption of 29 U.S.C. § 1401(a)(3)(A) applies. “For purposes of any proceeding under this section, any determination made by a plan sponsor under sections 1381 through 1399 of this title and section 1405 of this title is presumed correct unless a party contesting the determination shows by a preponderance of the evidence that the determination was unreasonable or clearly erroneous.” Id. Bell contends that the arbitrator’s determination that Bell was not liquidated is a mixed question of law and fact to which this court must defer unless clearly erroneous. See Chicago Truck Drivers, Helpers & Warehouse Workers Union (Independent) Pension Fund v. Louis Zahn Drug Co., 890 F.2d 1405, 1411 (7th Cir.1989).
Under 29 U.S.C. § 1401(c), findings of fact of the arbitrator are presumed true unless rebutted by a clear preponderance.of the evidence. Legal determinations, however, are fully reviewable by the courts. Zahn Drug, 890 F.2d at 1409 (citing Trustees of Iron Workers Local 173 Pension Trust v. Allied Products Corp., 872 F.2d 208, 212 (7th Cir.), cert. denied, 493 U.S. 847, 110 S.Ct. 143, 107 L.Ed.2d 102 (1989)). In Zahn Drug, the Seventh Circuit held that the clearly erroneous standard applied to mixed questions of law and fact involving “fact-specific, non-recurring determinations,” but that “the parties have a right to expect that the re-
viewing court will scrutinize fully the arbitrator’s understanding of the underlying legal principles.” 890 F.2d at 1411. The question of whether being liquidated under the statute requires that cash be actually distributed is a legal question not limited by the fact review standard for arbitration proceedings. It is a question of statutory construction for which there is de novo review in the courts. Cf. Central States, Southeast & Southivest Areas Health & Welfare Fund v. Cullum Cos., 973 F.2d 1333, 1337 (7th Cir.1992) (arbitrator’s interpretation of 29 U.S.C. § 1384(a)(1)(A). is reviewable de novo). Whether a liquidation without providing a bond subjects a seller to withdrawal liability is also a legal question of statutory construction that is subject to de novo review.
Although the arbitrator’s legal determinations are not subject to deferential review, it still must be considered whether the Fund’s determinations, factual and legal, are subject to deferential review pursuant to § 1401(a)(3)(A). The presumption of § 1401(a)(3)(A) applies to both the arbitrator and court review. Grand Union Co. v. Food Employers Labor Relations Association, 808 F.2d 66, 70 (D.C.Cir.1987). No ease has been cited or found which discusses whether the presumption under § 1401(a)(3)(A) applies to legal determinations. The statute refers to deference to “determinations” without limiting such deference to factual determinations. Cf. United Retail & Wholesale Employees Teamsters Union Local No. 115 Pension Plan v. Yahn & McDonnell, Inc., 787 F.2d 128, 135 n. 9 (3d Cir.1986), ajfd by equally divided court, 481 U.S. 735,107 S.Ct. 2171, 95 L.Ed.2d 692 (1987) (per curiam) (statute provides for deference to “trustees’ factual determinations and discretionary judgments”). A standard of review, however, that refers to unreasonableness or clear error being'shown by.“a preponderance of the evidence” implies deference is primarily to factual questions ‘or mixed questions of fact and law; pure legal questions would not
Legal rulings are not discretionary determinations; the Fund does not have the discretion to ignore the statute. Cf. Cullum, 973 F.2d at 1339. Purely legal determinations of the Fund are not owed deference under § 1401(a)(3)(A). Deference need only be given to factual determinations, mixed questions of law and fact, and discretionary determinations. The issues presently in dispute are legal questions of statutory construction.
The first question to be addressed is the meaning of the term “liquidated” as used in § 1384. “If all, or substantially all, of the seller’s assets are distributed, or if a seller is liquidated before the end of the 5 plan year period described in paragraph (1)(C), then the seller shall provide a bond or amount in escrow equal to the present value of the withdrawal liability the seller would have had but for this subsection.” 29 U.S.C. § 1384(a)(3)(A). The arbitrator focused on the past tense of “liquidated” and concluded that the duty to provide a bond or escrow arose simultaneously with the actual distribution of the cash. Bell makes the arguments that were successful before the arbitrator. The Fund primarily argues that “liquidated” must have a meaning distinct from “distributed” and also that, under corporation law, conversion of other assets to cash constitutes being liquidated. No cases have been found which construe the meaning of “liquidated” as used in § 1384.
The initial focus of statutory construction is the plain language of the statute. Therefore, the first question is whether “liquidated” has an unambiguous meaning. Does it only mean the distribution of cash assets? Does it only mean the process of converting other assets to cash? Or, can it have either meaning in which case the statute may be ambiguous and more than just the plain language may have to be examined?
Considering the word “liquidated” in isolation, i.e. without considering its context within a sentence or paragraph, its meaning is ambiguous. “Liquidated” can mean (1) that noncash assets have been converted to cash, see, e.g., Black’s Law Dictionary 930 (6th ed. 1990) (citing Farmer’s State Bank & Trust Co. v. Brady, 137 Tex. 39, 152 S.W.2d 729, 732 (1941); Fleckner v. Bank of United States, 21 U.S. (8 Wheat.) 338, 362, 5 L.Ed. 631 (1823)) (“Black’s”) (liquidate) (“To convert assets to cash.”); Webster’s Third New International Dictionary 1319 defn. 4 (1981) (“Webster’s”) (liquidate) (“to convert (assets) into cash cliquidated his securities>”); (2) that assets and debts have been finally determined, see, e.g., Black’s at 930 (citing Electrical Products Corp. of Oregon v. Ziegler Drug Stores, Inc., 157 Or. 267, 71 P.2d 583, 584 (1937)) (liquidated) (“made certain as to what and how much is due”); id. (citing State ex rel. Banister v. Cantley, 330 Mo. 943, 52 S.W.2d 397, 399 (1932)) (liquidate) (“to ascertain the balance and to whom payable”); Webster’s at 1319 defn. la (liquidate) (“to determine by agreement or by litigation the
The meaning of “liquidated” still must be determined within the context of how it is used in the statute. The statute refers to two situations under which subsection 3(A) will come into play. It applies if “the seller’s assets are distributed, or if the seller is liquidated.” 29 U.S.C. § 1384(a)(3)(A) (emphasis added). “It is a basic rule of statutory construction that, if possible, effect is to be given to each and every word, clause and sentence in a statute, and a construction that results in any portion of a statute being superfluous should be avoided.” Thurner Heat Treating Corp. v. National Labor Relations Board, 839 F.2d 1256, 1259 (7th Cir. 1988). See also Zimmerman v. North American Signal Co., 704 F.2d 347, 353 (7th Cir. 1983) (“As a general rule, a court should not construe a statute in a way that makes words or phrases meaningless, redundant, or superfluous.”) The statute otherwise provides that subsection 3(A) comes into play when the seller’s assets are distributed. This would include the situation where cash assets are distributed. Therefore, construing “liquidated” to mean the time at which cash is distributed would be redundant and superfluous; that situation is already covered by the phrase “all, or substantially all, of the seller’s assets are distributed.” Therefore, a construction of “liquidated” that is distinguishable from the distribution of assets would be favored so that inclusion of the phrase “or if the seller is liquidated” is not rendered redundant and superfluous. “[T]he seller is liquidated” will be construed as meaning, all or substantially all of the seller’s assets have been converted to cash for the purpose of winding up the affairs of the seller.
Bell completed the process of converting its assets to cash by no later than July 31, 1987. This conversion was for the purpose of winding up the affairs of the corporation and in preparation for the distribution of the cash to Bell’s shareholders. As of July 31, 1987, Bell had been liquidated as that term is used in § 1384(a)(3)(A). The arbitrator’s holding to the contrary cannot be upheld because it is inconsistent with the applicable law. That holding, however, is only an alternative holding. The arbitrator’s award denying withdrawal liability can still be upheld if he was correct in determining that failure to post a bond or escrow when the seller is liquidated does not cause the seller to be subjected to withdrawal liability.
Under § 1384(a)(1), the Fund is protected in two ways in the event that the purchaser fails to pay its new obligations. First, the purchaser must provide a bond or escrow to cover contributions due after the sale and also to cover withdrawal liability in the event the purchaser subsequently withdraws from the pension plan. 29 U.S.C. § 1384(a)(1)(B). Second, the seller must, by contract, be secondarily liable for withdrawal liability if the purchaser fails to pay its liability to the pension plan. Id. § 1384(a)(1)(C). See also Cullum, 973 F.2d at 1340 & n. 2-3.
As further protection, the statute expressly provides that, should the purchaser withdraw within five plan years and fail to timely pay its withdrawal liability, the seller shall be liable for the withdrawal liability that would otherwise have been due had the sale been considered a withdrawal. 29 U.S.C. § 1384(a)(2).
Finally, § 1384(a)(3) provides further protection against being unable to collect from the seller should the seller subsequently incur any liability. See Cullum, 973 F.2d at 1340 (“another safeguard”). This section requires that the seller provide a bond or escrow should, during the first five plan years after the sale, some or all of the seller’s assets be distributed or all or substantially all the seller’s assets be liquidated. The amount of the bond or escrow is measured by the withdrawal liability that the seller would have had. Although not expressly stated, consistent with the other provisions of the statute, the bond or escrow would be to cover any secondary liability in accordance with § 1384(a)(1)(C) or. under § 1384(a)(2). Cf. New York State Teamsters Conference Pension & Retirement Fund v. St. Lawrence Transit Mix Corp., 612 F.Supp. 1003, 1009 (N.D.N.Y.1985) (“Subsection (3) is designed to further protect the plan sponsor. This subsection provides that a seller who liquidates substantially all of its assets within the five year period must provide a bond to protect the seller’s secondary liability”). The seller cannot incur any withdrawal liability pursuant to § 1384(a)(1)(C) or § 1384(a)(2) unless the purchaser withdraws within five plan years and the purchaser fails to pay its withdrawal liability. Therefore, absent any withdrawal liability being incurred by the purchaser within the five-year period, the bond would only have to remain in force until the end of the five-year period or, alternatively, any amounts set aside in escrow would be returned to the seller at the end of the five-year period.
Bell violated § 1384(a)(3) because it liquidated within the five-year period, but failed to provide a bond or place the appropriate amount in escrow. The Fund would have been entitled to demand that Bell provide the bond or escrow and to pursue such relief if Bell refused. That, however, is not what the Fund demanded; the Fund demanded that Bell pay the withdrawal liability allegedly due.
Bell also seeks summary judgment on its counterclaim. Since the undisputed facts show that Bell did not owe any withdrawal liability, it is entitled to a refund of the interim payments it has made. The counterclaim is only against the Fund; the trustee is not expressly included as a counterdefendant. It is uncontested that Bell made interim payments of $576,694.53. Bell also seeks prejudgment interest on this amount. Bell, however, provides no calculation of prejudgment' interest. Therefore, prejudgment interest will be denied at this time. Judgment will be entered for $576,694.53. Bell must move within the time limits of Fed.R.Civ.P. 59(e) if it wishes to amend the judgment to add prejudgment interest.
IT IS THEREFORE ORDERED that:
(1) Motion by defendant to strike [30-1] is denied.
(2) Motion by plaintiffs for summary judgment on Count II of the amended complaint [19-1] is denied. Cross-motion by defendant for summary judgment of Bell Transit Company [26-1] is granted in part and denied in part.
(3) The Clerk of the Court is directed to enter judgment in favor of defendant and against plaintiffs dismissing plaintiffs’ cause of action with prejudice. The Clerk of the Court is further directed to enter judgment in favor of counterplaintiff Bell Transit Company and against counterdefendant Central States, Southeast & Southwest Areas Pen
. Defendant's motion to strike plaintiffs’ reply brief is denied.
. For purposes of this litigation, the parties have agreed to assume that these requirements are satisfied. Apparently, Best has never posted a bond. The parties stipulated and documents indicate that, in December 1987, Best requested a variance from posting a bond. Variances may be granted under certain circumstances. See 29 U.S.C. § 1384(c); 29 C.F.R. § 2643.11(a). In the request for a variance, Best stated that it would not obtain a bond pending the Fund’s ruling on the requested exemption. The parties have stipulated that the Fund has neither granted nor denied Best’s request for a variance. Under the applicable regulations, Best cannot be required to provide the bond until 30 days after any denial of a request for a variance from the bond requirement. See 29 C.F.R. § 2643.11(d).
. Alternatively, to the extent the issue of being liquidated is a mixed question of law and fact, the Fund’s determination would be subject to deferential review pursuant to 29 U.S.C. § 1401(a)(3)(A). Since the arbitrator failed to accord to the Fund’s determination the § 1401(a)(3)(A) presumption of correctness, the arbitrator’s determination would not be accorded the presumption contained in § 1401(c) even if that presumption were otherwise applicable. Trustees of Pressman Local 72 Industry Pension Fund v. Judd & Detweiler, Inc., 736 F.Supp. 1351, 1356 (D.Md.1988); Combs v. Classic Coal Corp., 931 F.2d 96, 102 (D.C.Cir.1991).
. Bell also contends that the presumption of § 1401(a)(3)(A) is unconstitutional. The courts of appeal are split on this issue with only one finding the statute to be unconstitutional and at least five others upholding the statute as constitutional. See Sherwin-Williams Co. v. Central States, Southeast & Southwest Areas Pension Fund, 787 F.Supp. 136, 138 (N.D.Ill.1992) (collecting cases). The Supreme Court has recently granted certiorari on the issue and apparently will resolve the conflict. See Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, - U.S. -, 112 S.Ct. 2273, 119 L.Ed.2d 200 (1992) (granting certiorari). Since the presumption is otherwise found to be inapplicable in the present case, it is unnecessary to resolve the constitutional question. It is noted, however, that 28 U.S.C. § 2403(a) and Fed.R.Civ.P. 24(c) require that the parties or the court notify the Attorney General of the United States of the pendency of any action challenging the constitutionality of a federal statute. See Tonya K. v. Board of Education of City of Chicago, 847 F.2d 1243, 1247 (7th Cir.1988). Therefore, a copy of today's order is being sent to the United States Attorney for the Northern District of Illinois. Defendant is also directed to send a copy of today’s order to the United States Attorney along with a copy of all briefs in which the constitutional issue is addressed.
. Both parties rely on 16A Fletcher Cyclopedia of the Law of Private Corporations § 7968 (rev. perm. ed. 1988) which defines liquidation as meaning "the winding up of the affairs of a corporation by getting in its assets, settling with creditors and debtors and apportioning the amount of profit and loss.” Fletcher does not make clear whether the definition of "liquidated” necessarily includes actual distribution of all cash.
. Since the amount of the bond or escrow is measured by annual contributions, not potential withdrawal liability, the bond or escrow may be insufficient to cover any withdrawal liability incurred by the purchaser.
. Cullum only concerned § 1384(a)(1)(A), but cited a case indicating satisfaction of subsections 1(B) and 1(C) are also determined as of the time of the sale. The latter references arc dictum in Cullum. Given that variances from subsections 1(B) and 1(C) may be applied for and that subsection 1 (B) need not be immediately satisfied if application for a variance is made within a year of the sale, sec 29 C.F.R. § 2643.11, there are at least some circumstances where, as to at least subsection 1(B), the existence of the exemption must take into account actions that occur after the time of the sale.
.If withdrawal liability is incurred by the purchaser and paid over a period of time, then the
. The Fund does not presently demand any other relief than withdrawal liability and is unlikely to be entitled to any other relief even if it had sought it. The sale occurred over six years ago so the applicable time period has run without the purchaser withdrawing from the Fund. Therefore, the Fund has not suffered any damages that it can claim and there is no longer any requirement of providing a bond or escrow. The bond that Bell should have provided would have expired already (or any escrow fund would have been returned to Bell).