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Central States, Southeast and Southwest Areas Pension Fund and Arthur H. Bunte, Jr., Trustee v. E & L Development

August 15, 2012

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND AND ARTHUR H. BUNTE, JR., TRUSTEE, PLAINTIFFS,
v.
E & L DEVELOPMENT, INC., DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

The Central States, Southeast and Southwest Areas Pension Fund and its trustee (collectively, the Fund) has sued E & L Development, Inc. under the Employee Retirement Income Security Act of 1974 (ERISA), as amended by the Multiemployer Pension Plan Amendments of 1980 (MPPAA). The Fund seeks to collect the amount it assessed against E & L as "withdrawal liability" when E & L withdrew from participation in the Fund, together with interest, liquidated damages for nonpayment, and attorney's fees. Both sides have filed motions for summary judgment. For the reasons stated below, the Court grants the Fund's motion and denies E & L's motion.

Facts

The Fund is a multiemployer pension plan. E & L is a Michigan corporation that was subject to a collective bargaining agreement that required contributions to the Fund on behalf of some of its employees. As of October 4, 2008, E & L permanently ceased contributing to the Fund. This constituted a "complete withdrawal" as defined in 29 U.S.C. § 1383.

On or around August 12, 2010, the Fund notified E & L that the principal amount of withdrawal liability incurred was $1,076,391.08. It notified E & L that it could discharge its liability in a lump sum or in monthly payments of $8,718.08, beginning in September 2010 and ending in May 2028. On or around September 17, 2010, the Fund advised E & L that payment was past due. The Fund stated that payment was due within sixty days and that if it did not receive payment within that time, it would hold E & L in default and the entire assessed amount of E & L's withdrawal liability would be due. E & L made no payments.

The Fund filed this suit in October 2011. It seeks $1,076,391.08 in withdrawal liability; prejudgment interest; an amount equal to the greater of liquidated damages of twenty percent of the unpaid withdrawal liability or interest on the unpaid withdrawal liability; and attorney's fees and costs, pursuant to 29 U.S.C. §§ 1132(g)(2) & 1451(b).

The Fund has moved for summary judgment, seeking all of the relief just described, including liquidated damages of $215,278.22, representing twenty percent of the entire withdrawal liability. E & L has cross-moved for partial summary judgment. It contends that the Fund is not entitled to liquidated damages totaling twenty percent of the entire withdrawal assessment, but only twenty percent of the total of the unpaid interim payments. The Fund also asks the Court to retain jurisdiction over the case in connection with the Fund's collection of the judgment.

E&L does not contest the principal amount of the withdrawal liability that it owes. Nor does it contest the Fund's entitlement to interest, attorney's fees, and costs.

The Fund is therefore entitled to summary judgment on those points. The principal amount of the withdrawal liability is $1,076,391.08. Interest must be calculated, a matter that the Court will leave to the parties to attempt to work out in the first instance. Attorney's fees and costs will be assessed following entry of judgment, in accordance with procedures typically followed. In this decision, the Court considers only the two issues raised in the parties' summary judgment motions.

Discussion

Summary judgment may be granted where the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Lexington Ins. Co. v. Rugg & Knopp, Inc., 165 F.3d 1087, 1090 (7th Cir. 1999); Fed. R. Civ. P. 56(c). In considering a summary judgment motion, a court construes the facts in the light most favorable to the non-moving party and draws reasonable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

1. Liquidated damages

When a pension plan like the Fund sues to recover unpaid withdrawal liability, it is entitled to recover the amount of the unpaid contributions; interest on the unpaid contributions; attorney's fees and costs; and "an amount equal to the greater of interest on the unpaid contributions, or liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law)" of "the amount determined by the court under subparagraph (A)," namely the unpaid contributions. 29 U.S.C. §§ 1132(g)(2)(A)-(D) & 1451(b).

The Fund contends that the liquidated damages penalty referred to in section 1132(g)(2)(C)(ii) as twenty percent of "unpaid contributions" means twenty percent of the unpaid withdrawal liability. It further contends that the unpaid withdrawal liability is the total withdrawal liability, not just the sum of the unpaid interim payments. The Fund reasons that awarding liquidated damages calculated against the entire withdrawal liability owed is consistent with the legislative intent behind the passage of MPPAA -- providing ...


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