United States District Court, N.D. Illinois
June 3, 2004.
BRACH'S CONFECTIONS, INC., Plaintiff
HOWARD McDOUGALL, as trustee of CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, and CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, Defendants
The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This case arises under the Multiemployer Pension Plan Amendments Act of
1980 ("MPPAA"), 29 U.S.C. § 1381-1461. Plaintiff Brach's Confections,
Inc., ("Brach's" or "Plaintiff) claims that Defendant trustee Howard
McDougall ("the Plan Sponsor") and Defendant Central States, Southeast
and Southwest Areas Pension Fund ("the Plan") (collectively "Defendants")
failed to provide information as required under 29 U.S.C. § 1401 (e) for
the calculation of Brach' s withdrawal liability after Brach' s withdrew
from the Plan. Defendants contend that they are not required to supply
any information to Brach's because § 1401(e) does not apply when the
employer already has withdrawn from the Plan. This case comes before the Court by means of a trial on the papers in
which the parties have submitted briefs and supporting exhibits which
constitute the record in this case. See Morton Denlow, Trial on the
Papers: An Alternative to Cross-Motions for Summary Judgment, Fed,
Lawyer, Aug. 1999, at 30; see also Hess v. Hartford Life & Accident
Ins. Co., 274 F.3d 456 (7th Cir. 2001) (viewing as a bench trial to which
Federal Rule of Civil Procedure 52(a) review applied, the procedure
whereby a district court entered its judgment after receiving a
stipulation of the facts that made up the record); May v.
Evansville-Vanderburgh Sch. Corp., 787 F.2d 1105, 1115-16 (7th Cir. 1986)
(determining the parties' cross-motions for summary judgment before a
district judge to have been a request for a trial on the papers where the
parties waived their right to trial and did not raise the issue of genuine
material facts on appeal); Acuff-Rose Music Inc. v. Jostens, Inc.,
155 F.3d 140, 142 (2d Cir. 1998) (adopting the position that a district
court can decide a case by summary bench trial pursuant to Federal Rule
of Civil Procedure 52(a) where the parties clearly have waived their
right to a full trial). The parties have agreed to proceed in this manner
and to waive their right to oral testimony on the issues herein
presented. Oral argument was held on May 27, 2004.
The following constitute the Court's findings of fact and conclusions
of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. To
the extent certain findings may be deemed to be conclusions of law, they
shall also be considered conclusions of law. Similarly, to the extent
matters contained in the conclusions of law may be deemed findings of
fact, they shall be considered findings of fact. I. FINDINGS OF FACT
A. THE PARTIES
1. Plaintiff Brach's Confections, Inc., is a Delaware corporation with
its principal place of business located in Dallas, Texas, and is a wholly
owned subsidiary of Brach's Confections Holding, Inc. Compl. ¶ 2.
Prior to December 2003, Brach's had operated a manufacturing and
distribution facility in Chicago, Illinois, and had participated in the
2. The defendant trustees are the "Plan Sponsor," as that phrase is
defined under the Employee Retirement Income Security Act ("ERISA"),
29U.S.C. § 1002(16)(B)(iii), and have their principal place of business
in Rosemont, Illinois. Compl. ¶ 3. The Plan Sponsor manages the Plan, a
multiemployer pension plan within the meaning of the MPPAA. Id. ¶ 1.
B. BRACH'S WITHDRAWAL FROM THE PLAN AND ITS WITHDRAWAL ASSESSEMENT
3. In December 2003, Brach's ceased its participation in the Plan.
Id. ¶ 6.
4. This triggered a complete withdrawal from the Plan under
29 U.S.C. § 1383. Def. Memo, at 4.
5. As required by 29 U.S.C. § 1399(b), the Plan Sponsor served
Brach's with a withdrawal assessment on March 11, 2004, providing notice
that Brach's withdrawal liability was $31,729,193.13. Compl. ¶ 7; Pl.
Memo. Ex. A. The Plan Sponsor calculated the withdrawal liability under a
modified presumptive method. Compl. ¶ 8. The withdrawal assessment
submitted to Brach's included a three-page summary computation of the withdrawal liability incurred by Brach's. Pl. Memo. Ex. A. The withdrawal
assessment letter also included a copy of the Plan's "Rules and
Regulations Pertaining to Employer Withdrawal Liability," which allow
ninety days for Brach's to request a review of the liability assessment,
mirroring the ninety-day period allowed by the applicable federal
statute, 29U.S.C. § 1399(b), Id.
6. The modified presumptive method used to calculate Brach's withdrawal
liability relies on a number of complex actuarial assumptions to
determine the values of the Plan's pre and post-1980 unfunded vested
benefits. Compl. ¶ 9. The method requires additional assumptions not
only to determine the value of the Plan's unfunded vested benefits at the
end of the plan year preceding the plan year in which Brach's withdrew
but also to determine the amount of unfunded vested benefits that are
expected to be collected from employers that withdrew in previous plan
years. Id. ¶¶ 10-11. A series of calculations utilizing these assumptions
determines an employer's withdrawal liability. Id. ¶¶ 10-12.
7. The liability assessment letter submitted to Brach's did not include
the detailed actuarial assumptions that the Plan Sponsor used to
calculate Brach's withdrawal liability. Pl. Memo. Ex. A.
C. BRACH'S REQUEST FOR INFORMATION FROM THE PLAN
8. Brach' s claims that it could not determine the accuracy and
reasonableness of the Plan Sponsor's assessment of withdrawal liability
under the Plan. Compl. ¶ 14. 9. Accordingly, on March 12, 2004, Brach's sent to Defendants a request
for additional information that Brach's deemed necessary to "verify its
withdrawal liability assessed" by the Plan Sponsor. Pl. Memo. Ex. B.
Jonathan B. Waite is an actuary and a consultant for Aon Consulting whom
Brach's has retained to review the Plan Sponsor's assessment of
withdrawal liability under the Plan. Id. at Ex. D. Mr. Waite avers in his
declaration that he requires the additional information first requested
in Brach's March 12 letter in order to "analyze the withdrawal liability
assessed to Brach's by the [Plan] and to verify that the determination of
liability is correct." Id.
10. On April 9, 2004, the Plan Sponsor responded to Brach' s request
and supplied ten booklets. Def. Memo. Ex. D. The booklets contained
information from the previous ten years, including excerpts from
actuarial reports and excerpts from the Plan Sponsor's Form 5500 (filed
annually with the Department of Labor and containing actuarial and
financial information). Def. Memo, at 5 & Ex, D, The Plan Sponsor
supplied the information in the booklets despite stating in the
responding letter a belief that Brach's was not entitled to the
information because Brach's already had withdrawn from the Plan but had
not yet entered arbitration. Def. Memo. Ex. D. The Plan Sponsor did not
supply all the information Brach's had requested and did not extend the
ninety-day review deadline. Pl, Memo, at 5.
11. On April 23, 2004, Brach's replied to Defendants' letter of April 9
to request that Defendants supply the additional information requested in
their earlier letter of March 12, 2004, and requested an extension of the
ninety-day request for review deadline, Def. Memo. Ex. C. D. THE LITIGATION
12. On April 30, 2004, Brach's filed this lawsuit to obtain all of the
information it requested in its letter of March 12, 2004.
13. On May 3, 2004, Brach's filed a motion for a preliminary injunction
before District Judge Ronald A. Guzman. The motion for preliminary
injunction was referred to this Court for resolution.
14. The parties have consented to this Court's jurisdiction pursuant to
28 U.S.C. § 636(c)(1). The parties also agreed to dispense with the
motion for preliminary injunction and to proceed directly to a resolution
of the merits of the case by means of a trial on the papers.
15. This proceeding will be conducted in two phases. First, the court
will determine whether Brach's is entitled to any documents under
29 U.S.C. § 1401(e). In the event the Court answers this question in the
affirmative, the case will proceed to a second phase to determine what
information Defendants are required to produce under 29 U.S.C. § 1401(e).
In the event the Court determines that no documents need to be produced,
the case will terminate at Phase I. This decision involves only the
Court's Phase I determination.
II. ISSUE PRESENTED
16. Whether Brach's is entitled to receive information from Defendants
under 29 U.S.C. § 1401(e), where Brach's has withdrawn from the Plan, but
has not yet requested review by Defendants under 29 U.S.C. § 1399(b)(2)(A),
or arbitration under 29 U.S.C. § 1401(a).
ANSWER: Yes. III. JURISDICTION AND VENUE
17. The parties have consented to this Court's jurisdiction pursuant to
28 U.S.C. § 636(c)(1). This Court has federal jurisdiction over the case
pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1451(c) because the
litigation arises under ERISA. Venue is proper under 29 U.S.C. § 1451(d)
because the Plan is administered in this district.
IV. CONCLUSIONS OF LAW
A. ERISA BACKGROUND
18. Congress enacted the Employee Retirement Income Security Act of
1974, 29 U.S.C. § 1001, et seq., to help assure that employees would
receive the pensions that their employers had promised them. Milwaukee
Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co., 513 U.S. 414,
416 (1995). To accomplish its goal, ERISA required employers to make
sufficient contributions to meet future liabilities and, if a plan became
insolvent, ERISA also required a fair share contribution from any
employer that had withdrawn from the plan in the previous five years.
19. The Multiemployer Pension Plan Amendments Act of 1980,
29 U.S.C. § 1381-1461, amends ERISA by imposing a withdrawal liability on
any employer who withdraws from an underfunded pension plan. Id. at 417.
Thus, an employer that withdraws from an underfunded plan must pay into
the plan according to that employer's liability prior to withdrawal,
regardless whether the plan later becomes insolvent. Id. The MPPAA
eliminates the incentive for an employer to withdraw from an underfunded
plan by foreclosing the possibility that the employer might escape responsibility for an
underfunded pension plan. Id. The withdrawal liability requirement also
helps to ensure that the plan will be able to pay pensions despite an
employer's withdrawal. Id.
B. 29 U.S.C. § 1399(b)
20. 29 U.S.C. § 1399(b) governs the process by which an employer
receives notice of its withdrawal assessment and requests informal review
of the assessment by the plan sponsor. Under § 1399(b)(1), a plan sponsor
must supply an employer with an assessment of the amount of liability
resulting from that employer's complete or partial withdrawal from the
plan. The plan sponsor also must supply a schedule of payments and must
demand payment in accordance with the schedule. 29 U.S.C. § 1399(b)(1).
The plan sponsor must provide such notification "as soon as practicable
after an employer's complete or partial withdrawal" from the plan. Id.
21. 29 U.S.C. § 1399(b)(2)(A) lists an employer's rights in questioning
the plan sponsor's assessment of liability:
No later than 90 days after the employer receives the
notice described in paragraph (1), the employer
(i) may ask the plan sponsor to review any specific
matter relating to the determination of the employer's
liability and the schedule of payments;
(ii) may identify any inaccuracy in the
determination of the amount of the unfunded vested
benefits allocable to the employer, and
(iii) may furnish any additional relevant
information to the plan sponsor.
29 U.S.C. § 1399(b)(2)(A). Section 1399(b)(2)(B) governs the plan
sponsor's responses to such informal requests for review and requires the
sponsor to notify the employer of its decision, the basis for the decision, and the reason for any change in
the amount of the employer's liability or schedule of liability
payments. However, § 1399 does not provide a mechanism by which the
employer can demand information from the plan sponsor that the employer
might use to identify specific matters for review (under §
1399(b)(2)(A)(i)) or to identify inaccuracies (under §
C. 29 U.S.C. § 1401
22. 29 U.S.C. § 1401 outlines methods of dispute resolution under
the MPPAA. Subsections (a) through (d) govern various facets of the
required arbitration procedure that an employer may use to contest a plan
sponsor's withdrawal liability assessment. Although subsections (a)
through (d) specifically address arbitration and alternative collection
methods, subsection (e), entitled "Furnishing of information by plan
sponsor to employer respecting computation of withdrawal liability of
employer; fees," makes no reference to the arbitration process. Section
If any employer requests in writing that the plan
sponsor make available to the employer general
information necessary for the employer to compute
its withdrawal liability with respect to the plan
(other than information which is unique to that
employer), the plan sponsor shall furnish the
information to the employer without charge. If any
employer requests in writing that the plan sponsor
make an estimate of such employer's potential
withdrawal liability with respect to the plan or
to provide information unique to that employer,
the plan sponsor may require the employer to pay
the reasonable cost of making such estimate or
providing such information.
29 U.S.C. § 1401(e). Thus, § 1401(e) provides a mechanism by which an
employer can request "general information necessary for the employer to
compute its withdrawal liability" as well as a mechanism by which an employer can request an "estimate of
. . . potential liability" as computed by the plan sponsor. This case
presents the issue of whether Brach's can rely upon the first sentence of
§ 1401(e) after it has withdrawn from the Plan.
D. PLAINTIFF IS ENTITLED TO GENERAL INFORMATION UNDER § 1401(e).
23. Brach's seeks to determine whether it should ask the Plan Sponsor
"to review any specific matter relating to the determination" of its
withdrawal assessment, pursuant to § 1399(b)(2)(A)(i), and whether it can
"identify any inaccuracy in the determination of the amount of the
unfunded vested benefits allocable to the employer," pursuant to §
1399(b)(2)(A)(ii). Brach's claims to lack information which it deems
necessary to make such determinations. Brach's acknowledges that §
1399(b) has no provision under which it can obtain the information it
requires, and therefore Brach's relies on § 1401(e) to obtain information
from the Defendants about its withdrawal liability assessment.
24. The Defendants contend that § 1401(e) does not apply because
Brach's already has withdrawn from the Plan. Defendants claim they have
no current obligation to supply Brach's with any information and that
Brach's will be entitled to discovery once it files for arbitration under
29 U.S.C. § 1401(a). See 29 C.F.R. § 4221.5(a)(2) (providing for
prehearing discovery in the arbitration proceeding).
25. Neither the United States Supreme Court nor the Seventh Circuit has
addressed the issue presented in this case. Two conflicting lines of
authority have developed following the adoption of the MPPAA. Drawing on
Debreceni v. Merchants Terminal Corp., 740 F. Supp. 894 (D. Mass. 1989), aff'd on other grounds, 889 F.2d 1 (1st
Cir. 1989), the court in Reliable Liquors, Inc. v. Truck Drivers &
Helpers, Local Union No. 355, Pension Fund, 240 F. Supp. 450, 452 (D.
Md. 2003), construed § 1401(e) to apply only prior to an employer's
withdrawal from a plan. The court held that once an employer withdraws,
it is no longer entitled to information under § 1401(e). Reliable
Liquors, Inc., 240 F. Supp. at 452. In contrast, the court in John J.
Nissen Baking Co. v. New England Teamsters & Trucking Industry Pension
Fund, 737 F. Supp. 679, 682 (D. Me. 1990), held that § 1401(e) "requires
the plan sponsor, if requested to do so, to provide information necessary
to the employer to calculate its withdrawal liability before the employer
requests review of or identifies inaccuracies in the sponsor's
calculation of that liability."
26. In Debreceni, arbitration was underway and the plaintiff plan
sponsor sought to compel interim payments from the defendant employer. 740
F. Supp. at 900. The court found in part that the plaintiff's failure to
supply information was an insufficient reason not to enforce an interim
payment schedule. Id. It mentioned in dicta, but failed to fully
consider, whether the term "employer" under § 1401(e) is restricted to
only a non-withdrawing employer. Id. at 894.
27. Citing Debreceni, the court in Reliable Liquors held that the
plaintiff employer was not entitled to any information under § 1401(e)
because the employer already had withdrawn from the plan. 240 F. Supp. at
452. In Reliable Liquors, the plaintiff employer withdrew from a plan,
received an assessment of withdrawal liability from the defendant plan
sponsor, and requested more information to evaluate the plan sponsor's
assessment. Id. at 451. The court held that the employer was not entitled to any information
after withdrawal and that § 1401(e) was inapplicable. Id. at 452.
28. The court in Reliable Liquors stated only that the employer
"misreads § 1401(e)" and that, "in the context of the full statutory
scheme, it is clear" that the first sentence of § 1401(e) applies only
before withdrawal. Id.
29. On the other hand, in Nissen Baking, a case factually similar to
Reliable Liquors, the court ruled that a plaintiff employer was entitled
to "general information." 737 F. Supp. at 680. The employer in that case
had withdrawn from the defendant plan and wished to gain more information
before requesting informal review under § 1399(b)(2)(A). Id. The court
relied on the statutory language, the legislative history, and the larger
statutory scheme to find that § 1401(e) requires the plan sponsor to
supply information "necessary for the employer to calculate its
withdrawal liability before the employer requests review of or identifies
inaccuracies in" the plan sponsor's assessment of liability. Id.
(emphasis added). This Court finds the Nissen Baking decision to be
consistent with the statutory scheme created under the MPPAA.
30. First, the Nissen Baking court noted that although many of
the portions of § 1401 discuss arbitration of withdrawal liability
disputes, "the language in subsection (e) in no way limits its effect to
arbitration proceedings." Id. at 681.
31. Second, the Nissen Baking court considered the legislative
history of the MPPAA, finding that it "links the provision of information
by the plan sponsor to the rights afforded employers in section 1399." Id. at 681. The court quotes the
following legislative history:
The bill would require that before the plan sponsor
demands payment the plan sponsor must afford the
employer a reasonable opportunity (1) to identify
errors in the determination of withdrawal liability,
(2) to identify errors in the payment schedule, and
(3) to furnish to the plan sponsor any additional
pertinent information. The plan sponsor also would be
required, if requested, to make relevant plan records
reasonably available to the employer for review and
After the plan sponsor demands payment of withdrawal
liability, an employer would be permitted to request
the plan sponsor to review any item relating to the
calculation of the liability and the payment
Id. (quoting H.R. Rep. No. 96-869(1), at 84 (1980), reprinted in 1980
U.S.C.C.A.N. 2918, 2952). The court reasoned that § 1401(e) applied
because Congress considered an employer's need for information (codified
in § 1401(e)) within the context of the employer's right to identify
errors and request a review (codified in § 1399(b)(2)(A)). Id.
Therefore, the court found that Congress intended § 1401(e) to apply when
an employer is considering exercising its rights under § 1399(b). Id.
32. Finally, the court in Nissen Baking considered the larger statutory
scheme and the purpose of the informal review process under § 1399(b).
Id. at 683. The court, ruling that information under § 1401(e) for
purposes of informal review was limited to "general information," found
that the review process was not meaningless because "it provides an
opportunity to clarify and pare down the issues." Id. The court reasoned
that by allowing the employer to obtain some information, the informal
review process could possibly "obviate the need for arbitration." Id. On the other hand, the court reasoned that
without the information, the employers "cannot effectively exercise their
statutory right to request review and therefore either simplify or
obviate the need for arbitration." Id. Furthermore, the court noted that
"if plan sponsors can, with impunity, deny requests for information, thus
forcing arbitration, the scheme envisioned by Congress will be
33. Unlike Reliable Liquors and Debreceni, the Nissen Baking court
examined the language of the statute and the legislative history as well
as the larger statutory scheme in concluding that § 1401(e) allows an
employer to receive "general information" after withdrawal. What
constitutes "general information" to which Brach's is entitled under §
1401(e) is reserved for a Phase II proceeding in the event the parties
cannot resolve this issue. This Court draws upon the reasoning in Nissen
Baking to hold that Brach's currently is entitled to "general information
necessary for an employer to compute its withdrawal liability" under §
34. The language of § 1401(e) does not limit itself to arbitration
proceedings, nor does the language require that the employer request
information prior to withdrawal. 29U.S.C. § 1401(e). Section 1401 is
entitled "Resolution of Disputes," and although subsections (a) through
(d) specifically deal with arbitration, the language of § 1401(e) does
not limit its effect to arbitration proceedings. Section 1401(e) makes no
mention of any particular time during which an employer must request, or
a plan sponsor must provide, general information regarding withdrawal
liability. Id. § 1401(e). The second sentence of § 1401(e) clearly
applies to the pre-withdrawal and pre-arbitration time period. The Court,
however, finds no basis to limit the first sentence of § 1401(e) to
the pre-withdrawal period.
35. The language of § 1401(e) does not require that an employer request
information prior to withdrawal in order to be entitled to general
information. The first sentence of § 1401(e) states that if "any employer
requests . . . general information necessary for the employer to compute
its withdrawal liability," then the plan is required to supply general
information. Id. § 1401(e). In contrast, the second sentence of § 1401(e)
applies only when the employer is seeking "an estimate of such employer's
potential withdrawal liability." Id. Although the term "potential
liability" clearly restricts the application of the second sentence to
employers who have not withdrawn from the plan, that term is excluded
conspicuously from the first sentence of the section. Furthermore, if the
entire section contemplated only potential liability, then liability in
the first sentence of the section would be conditioned on being
"potential." The first sentence, however, discusses "liability" only and
not "potential liability." Therefore the first sentence need not be
restricted to cases where liability is potential rather than actual.
36. The legislative history cited and discussed in Nissen Baking
supports such a reading. As the Nissen Baking decision points out, the
legislative history of the statute indicates that the plan sponsor should
provide information to the employer in order for the employer to identify
any errors in the assessment of its withdrawal liability. Nissen Baking, 737 F. Supp. at 681. Specifically, the MPPAA views the supply of
information as critical, stating that, under the statute, "the plan
sponsor also would be required, if requested, to make relevant plan
records reasonably available." Id.
37. As the Nissen Baking court explained, the MPPAA must be construed
to give meaning to both § 1399(b)(2)(A) and § 1401(e). Restricting §
1401(e) to preclude cases where an employer already has withdrawn but has
not requested review is illogical because, without the information that
can be requested only under § 1401(e), an employer may be unable to
exercise effectively its statutory right to request review under §
1399(b). If an employer cannot gain sufficient information to request an
informal review, then the informal review process under § 1399 is
rendered meaningless except as a technicality and as a necessary
prerequisite to arbitration.
38. The court in Reliable Liquors limited an employer's rights under §
1399(b) to the right to request review of any specific matter, the right
to identify inaccuracies, and the right to furnish additional information
to the plan sponsor under § 1399(b)(2)(A). However, the court did not
explain how an employer would gain information to meaningfully exercise
these rights without necessary information from the plan sponsor. Thus,
if an employer is lacking information, the employer technically can not
request review of any "specific matter," nor can it efficiently "identify
inaccuracies." A plan sponsor need only refuse to provide information,
thus forcing an employer immediately into arbitration instead of
conducting any informal review. 39. In this case, Brach's has received a $31,729,493.13 withdrawal
assessment. This assessment is a serious issue and there is no logical
reason why Brach's should not receive the information to which it was
entitled on the day before it withdrew, simply because it has exercised
its right to withdraw from the Plan.
40. Restricting the first sentence of § 1401(e) to instances where an
employer has not withdrawn from the plan also affords the section an
overly-narrow read. The "general information" required under § 1401(e)
may be useful to an employer in deciding whether to withdraw from the
plan. The same information is useful to an employer who already has
withdrawn and then must decide whether to request a review of the
withdrawal assessment. The Plan Sponsor is not justified in refusing
information to which an employer is entitled merely because the employer
is no longer considering withdrawal but rather already has withdrawn from
41. As the Reliable Liquors court acknowledges, "at the heart of the
MPPAA's regime are provisions for informal, expeditious resolution of
withdrawal liability disputes." Id. (quoting LAM. Nat'l Pension Fund v.
Clinton Engines Corp., 825 F.2d 415, 416 (D.C. Cir. 1987)).
29 U.S.C. § 1399 attempts to facilitate informal, expeditious resolution
of withdrawal liability by allowing an employer to request an informal
review within ninety days. However, if the employer has insufficient
information to engage in an informal review, then the employer is forced
immediately into arbitration. The interest in facilitating informal,
expeditious resolution through the informal review process can be served
only by allowing the employer the information necessary to engage in the
informal review. Furthermore, there is no additional burden on Defendants because they are required to provide this "general
information" to any employer that requests it to compute its withdrawal
42. Although this Court now holds that Brach's is entitled to general
information necessary for it to compute its withdrawal liability under
29 U.S.C. § 1401(e), no finding has been made as to the content of the
specific items of information to which Brach's is entitled. The Court
will allow the parties a brief period to resolve this issue on their own.
For the foregoing reasons, this Court holds that Brach's currently is
entitled to receive general information necessary for it to compute its
withdrawal liability with respect to the plan under 29 U.S.C. § 1401(e).
The parties shall promptly meet to discuss whether they can agree as to
the information the Defendants will produce. The case is continued to
June 9, 2004 at 9:30 a.m. for status. By agreement of the parties, the
90-day period under which Brach's must request review is extended pending
further order of this Court. No final judgment will be entered until such
time as it is determined whether a Phase II hearing is necessary.
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