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National Shopmen Pension Fund v. Disa

October 17, 2008

NATIONAL SHOPMEN PENSION FUND, ET, AL. PLAINTIFFS,
v.
GEORG FISCHER DISA D/B/A DISA INDUSTRIES, INC., DEFENDANT.



The opinion of the court was delivered by: Chief Judge Royce C. Lamberth

MEMORANDUM OPINION

This matter comes before the Court on plaintiffs' Motion [9] for Summary Judgment and defendant's Cross-Motion [10] for Judgment on the Pleadings. Upon full consideration of the motions, the oppositions and replies thereto, the applicable law, and the entire record herein, the Court finds, for the reasons set forth below, that plaintiffs' motion for summary judgment will be DENIED, defendant's motion for judgment on the pleadings will be GRANTED and plaintiffs' complaint will be dismissed with prejudice.

I. BACKGROUND

A. Statutory Framework

The Employee Retirement Income Security Act of 1974 ("ERISA") Sections 4201-4225, as amended by the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"), Pub. L. No. 96-364, 94 Stat. 1208, 29 U.S.C. §§ 1381-1461, provides that an employer who withdraws from a multiemployer pension plan must make withdrawal liability payments sufficient to cover that employer's fair share of the plan's unfunded vested liabilities. 29 U.S.C. §§ 1381, 1391.

The Act's withdrawal liability payment requirement protects the financial integrity of multiemployer plans, prevents withdrawing employers from shifting their burdens to remaining employers, and eliminates an incentive for employers to flee underfunded pension plans. See Milwaukee Brewery Workers' Pension Plan v. Jos. Schlitz Brewing Co., 513 U.S. 414, 416 (1995); Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 216 (1986); Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 722-23 (1984).

As a general matter, an employer completely withdraws from a plan when it "(1) permanently ceases to have an obligation to contribute under the plan, or (2) permanently ceases all covered operations under the plan." § 1383(a). The amount of withdrawal liability and the periodic payment schedule for paying that liability are determined as of statutorily-specified dates calculated from the date of complete withdrawal. Schlitz, 513 U.S. at 417-18, 430, citing §§ 1391(b)(2)(A)(ii), (b)(2)(E)(i), (c)(2)(C)(i), (c)(3)(A), and (c)(4)(A).

The statute sets out a series of mandatory steps to be followed in collecting the withdrawal liability. The MPPAA places responsibility for assessing and collecting withdrawal liability on the plan sponsor, usually a joint labor-management board of trustees. § 1382, § 1002(16)(B). Under ERISA Section 4219(b), "as soon as practicable" after an employer's withdrawal from the plan, the plan sponsor must determine the employer's withdrawal liability, if any, prepare a statutorily-mandated schedule for payment of that liability in installments, notify the employer of the amount of the liability and the payment schedule, and "demand payment in accordance with the schedule." §§ 1382, 1399(b)(1).

The plan's actuary determines withdrawal liability through a series of calculations that allocate a portion of the plan's unfunded vested benefits to the withdrawing employer pursuant to one of the methods authorized by ERISA, including the "attributable rule" adopted by the plaintiffs, which is set forth in ERISA Section 4211(c)(4) (29 U.S.C. § 1391(c)(4). See §§ 1388-1391, 1393. Once the actuary has calculated the withdrawal liability, the plan sponsor must prepare a schedule for the payments by determining the "level annual payments" necessary to amortize that liability, using a mandatory statutory formula for determining the amount of each annual payment as follows:

[T]he amount of each annual payment shall be the product of:

(1) the average annual number of contribution base units for the period of 3 consecutive plan years, during the period of 10 consecutive plan years ending before the plan year in which the withdrawal occurs, in which the number of contribution base units for which the employer had an obligation to contribute under the plan is the highest, and

(2) the highest contribution rate at which the employer had an obligation to contribute under the plan during the 10 plan years ending with the plan year in which the withdrawal occurs.

29 U.S.C. § 1399(c) (emphasis added).

If the annual payments would stretch past twenty years, the remaining payments are forgiven. § 1399(c)(1)(B). Finally, these "level annual payments" are made payable in quarterly installments, or other installment intervals specified by plan rules, such as the monthly payment schedule utilized by the plaintiffs. § 1399(c)(3).

Having completed the calculations, the plan sponsor then provides the withdrawing employer with the required notice of its withdrawal liability and installment payment schedule. "Withdrawal liability shall be payable in accordance with the schedule set forth by the plan sponsor" in the § 1399(b)(1) notification and demand for payment "beginning no later than 60 days after the date of the demand notwithstanding any request for review or appeal of determinations of the amount of such liability or of theschedule." § 1399(c)(2) (emphasis added).

The only provision in ERISA Section 4219 providing for changes to the determination of the employer's liability or schedule of liability payments after the statutorily mandated notification and demand for payment has been made requires an ...


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