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employer already has withdrawn from the Plan.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
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