until after Morrison Knudsen was out of the control group. Defendant points to no evidence, however, that this actually occurred. Defendant cites the affidavit of Mr. Fulton in support of this claim, Def.'s Statement of Material Fact P 8, but the Fulton affidavit does not state that Kanawha's control group made such payments. Such speculation does not suffice to create a genuine issue of material fact.
More importantly, ERISA's statutory scheme requires disputes over withdrawal dates and liability to be arbitrated and further requires, pending arbitration, that employers must make withdrawal liability payments as computed by plan sponsors. 29 U.S.C. §§ 1399 and 1401. ERISA expressly provides that "any dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination made under sections 1381 through 1399 of this title shall be resolved through arbitration." 29 U.S.C. § 1401(a)(1); see I.A.M. National Pension Fund Plan v. Clinton Engines Corp., 263 U.S. App. D.C. 278, 825 F.2d 415, 417, 422 (D.C. Cir. 1987) ("Arbitration reigns supreme under the MPPAA."); Marvin Hayes Lines, Inc. v. Central States Southeast and Southwest Areas Pension Fund, 814 F.2d 297, 300 (6th Cir. 1987); Combs v. Leishman, 691 F. Supp. 424, 429 (D.D.C. 1988). Although arbitration is an exhaustion requirement and not a jurisdictional one, it is required in all but a very narrow set of circumstances. I.A.M. National Pension Fund Plan v. Clinton Engines Corp., 825 F.2d at 418, 422.
ERISA also requires that "withdrawal liability shall be payable in accordance with the schedule set forth by the plan sponsor ... beginning no later that 60 days after the date of the demand notwithstanding any request for review or appeal of determination of the amount of such liability or of the schedule." 29 U.S.C. § 1399(c)(2); see 29 U.S.C. § 1401(d). The meaning of these provisions is unambiguous: employers are required to make withdrawal liability payments "during the pendency of any dispute." Marvin Hayes Lines, Inc. v. Central States Southeast and Southwest Areas Pension Fund, 814 F.2d at 299; see Board of Trustees of Trucking Employees of North Jersey Welfare Fund, Inc. v. Centra, 983 F.2d 495, 507 (3d Cir. 1992) ("The pay now, dispute later principle of the MPPAA is well established."). Indeed, the D.C. Circuit has made clear that even issues of statutory interpretation must be arbitrated first before they can be raised as defenses to withdrawal liability. I.A.M. National Pension Fund Plan v. Clinton Engines Corp., 825 F.2d at 418, 422. Thus, even if, as defendant argues, a different determination of the withdrawal date could establish that Morrison Knudsen was not in common control with Kanawha at the time of withdrawal, Morrison Knudsen is still required to make interim withdrawal liability payments while the issue of the withdrawal date is arbitrated.
Defendant also implies that its withdrawal liability could not accrue until Morrison Knudsen was notified or until it had actual knowledge of its liability. Pls.' Statement of Material Fact PP 6, 6(b)-(c), 7, 9, 10. Not only does defendant cite no authority for this proposition but Judge Hogan addressed this precise issue when he wrote that such a position "would allow a member of a controlled group to escape liability by selling stock after withdrawal but prior to notice from the pension fund of withdrawal liability, which is exactly the result Congress intended to prevent." Connors v. Brady-Cline Coal Co., 668 F. Supp. 5, 9 (D.D.C. 1987). See 29 U.S.C. § 1383(e) (date of complete withdrawal is date of cessation of the obligation to contribute).
C. Bankruptcy Proceedings
Defendant notes that plaintiffs have received certain payments pursuant to the Mullins bankruptcy reorganization plan. Although there may be a factual dispute over whether plaintiffs have received any of the withdrawal payments due them, compare Def's Controversion P 5(a) and Fulton Aff. PP 6-7 with Pls.' Reply Mem. at 10-11, this dispute is immaterial. "The law is clear that discharge of a debtor does not affect the liability on the debt of any co-debtors." Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 121 (4th Cir. 1991) (citing 11 U.S.C. § 524(e)); see I.A.M. National Pension Fund v. Slyman, 284 U.S. App. D.C. 21, 901 F.2d 127, 129 (D.C. Cir. 1990) (finding that the bankruptcy of one member of a common control group did not affect the liability of non-bankrupt affiliate). Moreover, even if Mullins' liability were discharged in part, it would be improper for this Court to absolve Morrison Knudsen of its liability at this stage because the correct amount of withdrawal liability and payments is subject to arbitration. 29 U.S.C. § 1401(d).
D. Morrison Knudsen's Contract With Mullins Cannot Discharge Morrison Knudsen's Liability
Morrison Knudsen also argues that its contract with Mullins relieves it of any liability for withdrawal payments, citing Combs v. Leishman, 691 F. Supp. 424 (D.D.C. 1988). Combs, however, does not support the proposition that defendant is relieved of liability, but only that a purchaser such as Mullins might be held liable under certain circumstances. More importantly, the Supreme Court has held that an employer cannot contract out of its MPPAA obligations. Connolly v. Pension Benefits Guarantee Corp., 475 U.S. 211, 223-24, 89 L. Ed. 2d 166, 106 S. Ct. 1018 (1986).
Plaintiffs are entitled to the delinquent withdrawal liability payments, interest on the unpaid payments, liquidated damages, reasonable attorneys' fees and costs. 29 U.S.C. §§ 1451(e), 1132(g)(2). As of the date of their Motion for Summary Judgment, March 14, 1996, plaintiffs calculated the amount due as follows:
36 delinquent payments $ 717,508.80 (April 9, 1993 - March 14, 1996)
Interest $ 86,457.20 (accrues at $ 172.08 per day)
Liquidated Damages $ 143,501.76
Attorneys' Fees to be determined
Costs to be determined
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