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June 3, 2004.


The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge


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are not required to supply any information to Brach's because § 1401(e) does not apply when the employer already has withdrawn from the Plan.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


  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 Plan. Id.

  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.


  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.


  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 ...

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