NATIONAL INTEGRATED GROUP PENSION PLAN et al v. BLACK MILLWORK COMPANY, INC., No. 2:2011cv05072 - Document 40 (D.N.J. 2013)

Court Description: OPINION. Signed by Judge Kevin McNulty on 8/1/13. (gmd, )

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY NATIONAL INTEGRATED GROUP PENSION PLAN, et al, Plaintiffs, OPINION V. BLACK MILLWORK COMPANY, INC., Dèfeñdáñt. KEVIN MCNULTY, U.S.D.J.: ( Black Miliwork ) In 1971, Defendant Black Miliwork Company, Inc. covered employees to the began making pension contributions on behalf of its the plaintiff in this action. National Integrated Group Pension Plan ( NIGPP ), and most of its revenue, Nearly forty years later, after losing its biggest supplier contends NIGPP, Black Black Miliwork withdrew from the NIGPP. By doing so, liability pursuant to the Miliwork incurred over $5 million in withdrawal 2 That withdrawal liability, Employee Retirement Income Security Act ( ERISA ). nded, vested benefits, representing Black Miliwork s share of the NIGPP s unfu Miliwork made the first is payable in eighty quarterly instalments. Black rs, and has submitted the payment in August 2010, but has made no othe issue of its liability to arbitration. the facts are not NIGPP has moved for summary judgment, arguing that to make these interim in dispute and that ERISA requires Black Miliwork nds that those payments withdrawal liability payments. Black Miliwork respo ld be excused under an would bankrupt the Company, and that it shou and Seventh Circuits. equitable exception that has been recognized by the Fifth Board of Trustees, For simplicity s sake, I refer to the plaintiffs, NIGPP and its collectively as NIGPP. 1 nts contained in Technically, the issues here turn largely on certain amendme ( MPPAA ). For simplicity, I the Multiemployer Pension Plan Amendments Act of 1980 refer to the statute generically as ERISA. 2 1 Dockets.Justia.com Civ. No. 2:11-5072 (KM) nts Third Circuit case law is clear that interim withdrawal liability payme exception are mandatory, even when arbitration is pending. And the equitable would not cited by Black Millwork, even if it were recognized in this Circuit, s motion for apply under the circumstances of this case. Accordingly, NIGPP summary judgment is granted. I. 3 FACTS & PROCEDURAL HISTORY A. Black Millwork s Employee Pension Plan s The NIGPP is a multi-employer defined benefit plan that receive pants. contributions from employers and pays vested benefits to partici r SMF) [Docket.No. 34.3], 4.2, Ex.. B).. (NIGPP s Statement yed an Pursuant to the NIGPP Plan Document, the Board of the NIGPP emplo Administrative Agency to administer the NIGPP. (Id. ¶ 8, Ex. A). ent 4 As of January 1, 1971, Black Millwork signed a Participation Agreem on behalf of with NIGPP in which it undertook to make specific contributions agreed to certain covered, unionized employees. In doing so, Black Millwork accept the terms and provisions of the Trust Agreement and to be bound by the acts and determinations of the Board [of Trustees under the Trust Agreement], including, without limitation, the establishment, maintenance, modification and termination of the [Plan] as provided in the Trust Agreement, i[t] being understood that no provision of this Participation Agreement shall alter the express provision of the Trust Agreement that no action may be taken by the Board which would impose any liability on [Black Miliwork] other than the timely payments to the Trust Fund of facts Pursuant to L. Civ. R. 56.1, NIGPP submitted a statement of material se that denies certain facts, believed to be undisputed. Black Millwork filed a respon requires. I but fails to cite to any affidavit or document in support, as Local Rule 56.1 Fed. R. would be justified in treating such defectively-denied facts as undisputed, see not raise Civ. P. 56(e)(2), (3), but I need not do so here because Black Miliwork does riateness, or not, of mandatory any genuine issue that is truly material to the approp Miliwork interim withdrawal liability payments the only issue at stake here. Black the Plan does not really contest, for instance, that it made payments to the Plan, that ed NIGPP s is governed by ERISA, or that its withdrawal from the Plan trigger determination that the Company owed withdrawal liability for doing so. - r At that time, Black Millwork was known as Black Miiwork & Lumbe Company, Inc. (Ex. B to SMF). 2 such contributions as are specified in the Pension Agreement or specified by the Board in its acceptance of this Participation thereof. Agreement, or any supplement. . . (Id.). pation Over the years, Black Miliwork signed Supplemental Partici (Ex. C to Agreements. (SMF ¶ 5). The most recent was dated January 15, 2007. by all SMF). It provided that the parties to this Supplement remain bound requirements in their Participation Agreement. (Id.). It goes on to state: The terms set forth in this Supplement and in the Board s Certification ¢of Acceptance of this Supplement shall define the Participating Employer s Contribution obligations to the Plan. Therefore, any term in the Pension Agreement/Collective Bargaining Agreement that is contrary to a term set forth in this Supplement, or in the Board s Certification of Acceptance of this Supplement, or that is otherwise contrary to the rules of the Plan, shall be of no force and effect unless approved by the Board. (Id.). pated From January 1, 1971 to January 31, 2010, Black Millwork partici d employees in the Plan and made regular contributions. As a result, its covere accumulated vested benefits. (SMF ¶ 7). B. Black Miliwork Withdraws from the NIGPP t In January 2010, the relationship between Black Millwork and its bigges No. 35-2]). 5 supplier, Andersen Windows, ceased. (Hoffman Decl. ¶ 2 [Docket from $180 As a result, Black Miliwork s sales volume shrank drastically, following million in the fiscal year ending January 1, 2010, to $4 million in the 30, 2010, fiscal year. (Id. ¶ 4). Through the eight months preceding September million. the Company had negative working capital and a net loss of about $2.5 1, 2013, the (Id.). Despite this setback, for the fiscal year ending January chance at Company projected profitability to be slightly negative, with a breaking even. (Id. ¶ 17). As a result of those financial reverses, Black Millwork decided it could May 10, not afford the quarterly payments to NIGPP. (Id. ¶ 5). Accordingly, on 5 Kevin Hoffman is the president of Black Millwork. 3 that, effective 2010, Black Millwork notified the NIGPP Administrative Agency in the Plan. retroactively as of January 31, 2010, it would no longer participate (SMFf 9). uted a The NIGPP Administrative Agency determined that this constit , 29 U.S.C. § complete withdrawal from the Plan within the meaning of ERISA withdraws 1383(a). (SMF ¶ 10). ERISA provides that if an employer completely plan in the from a multiemployer plan, then the employer is liable to the 29 U.S.C. § amount determined under this part to be the withdrawal liability. t of benefits 1381(a). In general, the withdrawal liability will equal the amoun that are vested, but unfunded, at the time of withdrawal. Ageney.. Wokig with the -Plan s actuaries the NIGPP Administrative liability determined that Black Miliwork had incurred an estimated withdrawal $64,466.85.6 (SMF ¶ of $5,215,128, to be paid in 80 quarterly instalments of rk of this 12). In a letter dated July 13, 2010, NIGPP informed Black Miliwo days, with determination and demanded the first payment within thirty subsequent quarterly payments to begin on January 1, 2011. (Id.). 13). On August 11, 2010, Black Miliwork paid the first instalment. (Id. ¶ d NIGPP In a letter dated November 17, 2010, however, Black Miliwork notifie nt to Section and the American Arbitration Association (the AAA ) that, pursua AAA Multi4221 of ERISA, 29 U.S.C. § 140 1(a), and in accordance with the tion to Employer Pension Plan Arbitration Rules, it was initiating arbitra In response challenge the NIGPP s withdrawal liability assessment. (SMF ¶ 18). parties have to the Court s request for an update, NIGP recently wrote that the but a hearing a conference scheduled with the arbitrator for August 26, 2013, Letter from date has not yet been set. (Id. ¶ 19-20, July 26, 2013 Update NIGPP [Docket No. 39J). y. Black Miliwork has made no further payments of its withdrawal liabilit d figures The total amount of unpaid instalments, according to recently update Update provided by NIGPP, is $709,132.38. (Id. ¶f 15, 16; July 26, 2013 drive it Letter). Black Miliwork contends that paying such an amount would out of business. (Hoffman Deci. ¶ 18). y For an employer that is delinquent in making withdrawal liabilit prime plus payments, the NIGPP Plan Document assesses an interest rate of it In a letter dated November 19, 2010, NIGPP informed Black Millwork that ly The quarter had recalculated the total withdrawal liability to be $5,154,623.00. nts did not change. (SMF ¶ 14). payment amount and the number of payme 6 4 filed. (Sections 12.06(d) two percent 5.25% at the time NIGOP s motion was ired to pay liquidated and 10.03(c) of Ex. G to SMF). The employer is also requ id installments or the damages, consisting of the greater of 20% of the unpa total interest owed, plus attorneys fees and costs. (Id.). C. Procedural History ed a number of On September 1, 2011, after Black Miliwork had miss n, alleging that ERISA quarterly payments, NIGPP filed the present actio the parties arbitration, requires Black Miliwork to pay, pending resolution of est, liquidated damages, any interim withdrawal liability payments, plus inter Complaint on December and attorneys fees and costs. NIGPP filed an Amended Court. has federal question 8201 t Baus the clairnsarise under- ERISA the 1451(c). Venue is proper jurisdiction. See 28 U.S.C. § 1391; 29 U.S.C. § in this District. See 28 because Black Miliwork is located and does business U.S.C. § 1331; 29 U.S.C. § 145 1(d). h apparently came There were efforts at settlement and mediation, whic filed this motion for to nothing. Thereafter, on September 21, 2012, NIGPP summary judgment. II. LEGAL STANDARD shows that there is A court shall grant summary judgment if the movant movant is entitled to no genuine dispute as to any material fact and the Celotex Corp. v. Catrett, judgment as a matter of law. Fed. R. Civ. P. 56(a); see opriate where there is no 477 U.S. 317, 322 (1986) (summary judgment is appr ing party is entitled to genuine issue of material fact to be resolved and the mov F.3d 173, 175 (3d Cir. judgment as a matter of law. ); Alcoa, Inc. v. U.S., 509 inates unfounded claims 2007). Summary judgment is desirable because it elim 477 U.S. at 327, but a without resort to a costly and lengthy trial, Celotex, pleadings, depositions, court should grant summary judgment only if the ther with the affidavits, answers to interrogatories, and admissions on file, toge rial fact and that the if any, show that there is no genuine issue as to any mate Fed. R. Civ. P. 56(c). moving party is entitled to judgment as a matter of law. a material fact is [S]ummary judgment will not lie if the dispute about nable jury could return a genuine, that is, if the evidence is such that a reaso , Inc., 477 U.S. 242, verdict for the nonmoving party. Anderson v. Liberty Lobby of material fact exists 248 (1986). The burden of showing that no genuine issue 323. Once the moving rests initially on the moving party. Celotex, 477 U.S. at 5 for summary judgment, the party has made a properly supported motion specific facts showing that burden shifts to the nonmoving party to set forth , 477 U.S. at 247-48. In there is a genuine issue for trial. See Anderson t must view all evidence in the evaluating a summary judgment motion, a cour ushita Elec. Indus. Co., Ltd. v. light most favorable to the nonmoving party. Mats dman v. Mead Johnson & Co., Zenith Radio Corp., 475 U.S. 574, 587 (1986); Goo 534 F.2d 566, 573 (3d Cir. 1976). III. ANALYSIS im Withdrawal Liability A. Has Black Miliwork s Duty to Make Inter Payments Been Triggered? opriate because ERISA NIGPP argues that summary judgment is appr drawal liability payments even requires Black Millwork to make interim with liability in arbitration. This while it disputes the fact or the amount of its as pay now, dispute later. statutory scheme has been succinctly described apply an equitable exception, Black Miliwork responds that the Court should which would relieve it from developed by the Fifth and Seventh Circuits, that there are no genuine making interim withdrawal liability payments. I find to judgment as a matter of issues of material fact and that NIGPP is entitled law. loyer if the employer ERISA imposes withdrawal liability on an emp nded, vested benefits. See 29 withdraws from the plan while there remain unfu this requirement to ease the U.S.C. § 1381(a), 1383(a). Congress enacted the remaining participating financial burden on the pension fund and on fit Guar. Corp. v. R.A. Gray & employers in a multiemployer plan. Pension Bene Congress was concerned that Co., 467 U.S. 717, 722 (1984). In particular, withdrawing employers were multiemployer pension plans would collapse if loyers with their pension permitted to, in effect, saddle the remaining emp ay v. Beaverbrook Coal Co., liabilities while disputes remained pending. Galg 105 F.3d 137, 139 (3d Cir. 1997). d benefits is triggered by Thus the employer s liability for unfunded, veste withdrawal from the plan: r permanently [A withdrawal occurs] when the employer eithe r the plan or ceases to have an obligation to contribute unde r the plan. 29 permanently ceases all covered operations unde of the plan s U.S.C. § 1383(a). The employer is liable for its share 6 time of withdrawal. unfunded vested benefits as calculated at the Pipe & Products v. 29 U.S.C. § 1381, 1383, 1391; Concrete 602, 609, 113 S.Ct. Constmction Laborers Pension Trust, 508 U.S. sponsor has the 2264, 2272, 124 L.Ed.2d 539 (1993). The plan liability, notifying the responsibility of determining this withdrawal C. § 1382. If the employer and collecting payment. 29 U.S. the plan sponsor to employer disputes the amount set, it may ask liability. 29 U.S.C. § conduct a reasonable review of the computed solved, either party 1399(b)(2)(A). In the event the dispute is unre 1). The arbitrator s may request arbitration. 29 U.S. C. § 1401 (a)( court. 29 U.S.C. § award, in turn, may be challenged in federal 14Q1{b)(2) Galgay, 105 F.3d at 138 39. fact are even theoretically Under this rigid regime, not many issues of factors, for example (probability material. The ordinary preliminary injunction s, and the public interest) do not of success, irreparable injury, balance of harm withdrawal liability shall be apply. Id. at 140. Congress has provided that forth by the plan sponsor. Id. payable in accordance with the schedule set hasis). [O]nce the pension fund (quoting 29 U.S.C. § 1399(c)(2) and adding emp statutory requirements for has demonstrated that it complied with the r, this Court s jurisdiction is calculating liability and notifying the employe payments. Id. limited to ordering the employer to make interim necessary steps under Here, the record is clear that NIGPP has taken the k Miliwork. After Black Miliwork ERISA to impose withdrawal liability on Blac from the Plan, the NIGPP notified NIGPP that it was withdrawing Black Millwork had incurred Administrative Agency first determined that unt due, which was in excess withdrawal liability and then calculated the amo med Black Millwork of its of $5 million. (SMF ¶ 12, Exs. D, E). NIGPP infor anded payment. (Id.). Even if findings by letter dated July 13, 2010, and dem mination in arbitration, as a Black Millwork planned to challenge that deter were enough to trigger Black matter of law, the steps taken by NIGPP 105 F.3d at 141 ( The Fund Miliwork s duty to make interim payments. See drawal liability was assessed, had sustained its burden of showing that with not made. That is all the statute [the employer] was notified and payments were requires. ). im withdrawal liability When Black Miliwork ceased paying the inter ran afoul of ERISA. instalments (after making the first payment), it 7 tration? B. Does It Matter That Black Millwork Has Invoked Arbi existence or Black Miliwork has commenced arbitration to contest the inly do; ERISA itself amount of its withdrawal liability. That it may certa the plan sponsor of a mandates that [a]ny dispute between an employer and e under sections 1381 multiemployer plan concerning a determination mad n. 29 U.S.C. § 1401(a). through 1399 of this title shall be resolved by arbitratio was made pursuant to Because NIGPP s determination of withdrawal liability ration provision. section 1382, it falls within the scope of that statutory arbit employer of its -invocation-of arbitrationhowever, does iwt absolve an ERISA requires that duty to make interim payments. Exactly the opposite: arbitrate their liability. employers make these payments even if they elect to F. Supp. 2d 507, 512 Trs. of Amalgamated Ins. Fund v. Crown Clothing, Inc., 27 n payments upon (D.N.J. 1998). Thus ERISA directs employers to begi choose to dispute the notification of withdrawal liability, whether or not they ents are to continue determination. Galgay, 105 F.3d at 139. And such paym ion : during arbitration, until the arbitrator issues a final decis ce with the Payments shall be made by an employer in accordan issues a determinations made under this part until the arbitrator itted for final decision with respect to the determination subm equent arbitration, with any necessary adjustments in subs out of the payments for overpayments or underpayments arising tion. If the decision of the arbitrator with respect to the determina with such employer fails to make timely payment in accordance quent in final decision, the employer shall be treated as being delin . the making of a contribution required under the plan U.S.C. § 1399(c)(2) 29 U.S.C. § 1401(d) (emphasis added); see also 29 request that the fund (employer, prior to making an arbitration demand, may review its liability calculation). . [P]ayments In short, the statutory scheme is pay now, dispute later decide that the plan are to be made during arbitration. Should the arbitrator loyer is reimbursed for sponsor erred in assessing withdrawal liability, the emp ency of a dispute in any overpayment. Galgay, 105 F.3d at 139. The pend ation to make interim arbitration does not affect Black Miliwork s oblig withdrawal liability payments. 8 Complete C. Do Black Miliwork s Factual Contentions or Its Failure to Discovery Bar Liability? tion to Black Miliwork, in a counterstatement filed with its opposi s Statement of summary judgment, purports to deny certain facts in NIGPP sory fashion, Material Facts. As noted above, Black Millwork does so in conclu record. See p. 2 as if it were answering a complaint, without any citation to the but it is not n.2, supra. The Court could deem such facts to be admitted, s entitlement necessary to do so. The very few facts needed to establish NIGPP to interim payments are not meaningfully contested. certain Black Miliwork also claims that NIGPP failed to respond to furnish a discovery requests, and it hypothesizes that proper responses might construe basis to claim that there is a genuine issue of material fact. I might n Facts Are this as an invocation of Federal Rule of Civil Procedure 56(d) ( Whe to show by Unavailable to the Nonmovant ). That Rule requires the nonmovant present facts affidavit or declaration that, for specified reasons, it cannot Civ. P. 56(d). essential to justify its opposition to summary judgment. Fed. R. to defeat the Black Miliwork has not done so. That in itself would be sufficient ent motion. Company s argument and allow me to resolve the summary judgm n.2 (rejecting See Falcone v. Columbia Pictures Indus., Inc., 805 F.2d 115, 117 Columbia s Falcone s argument that the district court erred in entertaining unity for motion for summary judgment without affording him the opport of Fed. R. discovery because Falcone [] failed to comply with the requirements agree that filing an affidavit thereunder is Most courts Civ. P. 56[d] ent should necessary for the preservation of a contention that summary judgm and citation be delayed pending further discovery. (internal quotation rk leave omitted)). In addition, Magistrate Judge Dickson granted Black Miliwo so; instead, it to file a motion to compel this discovery, but it declined to do r ground for allowed discovery to close. (See Docket Nos. 2 5-27). This is anothe Police Dep t, denying Rule 56(d) relief. See, e.g., Mobley v. City of Atlantic City ly denied 89 F. Supp. 2d 533, 537 (D.N.J. 1999) ( courts have routine delay has applications for relief under Rule 56([d]) when the party seeking the Civ. § 2740 failed to take advantage of discovery (citing lOB Fed. Prac. & Proc. . . . . . . (3d ed.)). I Technicalities aside, however, Black Miliwork has not proffered, nor can from such discern, any disputed issue of material fact that might emerge ents with a discovery. The allegedly outstanding discovery requests seek agreem 9 n Black carrier referred to in the collective bargaining agreement betwee information Miliwork and the United Auto Workers Union; general financial awal liability about the Plan; an explanation of NIGPP s calculation of the withdr withdrawing amount; and prior, recent settlements between NIGPP and requests are employers. (See Opp. at 7 [Docket No. 35} (listing requests)). Those y, an issue directed primarily, if not solely, to the amount of withdrawal liabilit documents committed to arbitration. Black Miliwork does not indicate how the claim in this it seeks would tend to disprove the basis for NIGPP s very narrow action. facts Black Millwork has not raised any dispute as to the very few issues are germane to the case. That is not surprising; the substantive r the simple consigned to arbitration, and the Cdürt thüst öi1i&t only whethe d on the procedural steps described in ERISA assessment of liability, a deman have. employer, and the employer s refusal have been completed. They D. Does an Equitable Exception Apply? te I consider one final issue: whether an equitable exception to the manda y payments. of ERISA would justify withholding interim withdrawal liabilit have invoked Black Millwork points out that the Fifth and Seventh Circuits that it would equity to excuse interim payments where the employer can show is frivolous suffer severe financial hardship, and that the pension fund s claim Plumbers and or not colorable. Galgay, 105 F.3d at 140 (citing Trustees of Cir. 1994); Pipefitters Nat l Pension Fund v. Mar-Len, Inc., 30 F.3d 621, 626 (5th Inc., 951 Trustees of the Chicago Truck Drivers Pension Fund v. Rentar Indus., d the equitable F.2d 152, 155 (7th Cir. 1991)). Those two Circuits have adopte unscrupulous exception solely to ensure that the courts are not used by an squeeze money pension fund lacking a legitimate withdrawal liability claim to at 141. from an employer and propel it into bankruptcy. Galgay, 105 F.3d Third Whether such an equitable exception exists is not settled in the n to consider Circuit. Galgay, 105 F.3d at 141 ( We do not now have occasio Galgay might adopting a similar equitable exception. ). Certain language in have never suggest that our Court of Appeals is skeptical. See id. at 140 ( We provisions on held that there are any equitable exceptions to the statutory indicated interim payments and we decline to do so now. Congress has clearly provides no its intent in this matter. The plain language of the statute Corp. v. exceptions ) (citation omitted). See also Eusa-Allied Acquisition No. 11-3181, Teamsters Pension Trust Fund of Philadelphia & Vicinity, Civ. *5 (D.N.J. June 16, 2011) (Simandle, C.J.) ( [W]hile such 2011 WL 2457695, at . 10 . is certainly not approved an exception is not explicitly prohibited by [Galgay], it either. ). is not prepared to go One thing, however, is clear: The Third Circuit 7 To the extent such an beyond those Fifth and Seventh Circuit holdings. king it must demonstrate equitable exception is available at all, the party invo lous and (b) that interim both (a) that the fund s claim in arbitration is frivo explicitly agree[d] with the payments would inflict irreparable harm. Galgay its in concluding that a reasoning employed by the Fifth and Seventh circu e insufficient to warrant showing of irreparable harm to the employer is alon 141. See also Eusa-Allied, equitable relief from interim payment liability. Id. at Fifth and Seventh Circuit supra(Galgay expressed limited agreement with the warrant hafri dlOneis courts on the issue that er, the [Galgay] majority equitable relief from interim payment liability. Howev not raised the argument opinion concluded that, because the employer had ider the issue. (internal that the fund s claim was frivolous, it would not cons quotation omitted)) ¢8 would still be But if the equitable exception were available, NIGPP if Black Miliwork could entitled to judgment as a matter of law. Even ld not be enough. Black demonstrate irreparable harm, under Galgay that wou l required showing that Miliwork could not, as it must, make the additiona lous or not colorable. NIGPP s underlying withdrawal liability claim is frivo F.3d at 626; Rentar, 951 F.3d Galgay, 105 F.3d at 140-41 (citing Mar-Len, 30 at 155). erected even more I note that at least one other circuit, the First Circuit, has liability payments. Eusa stringent requirements around staying interim withdrawal *5 (citing Giroux Bros. Transp., Inc. v. New England Teamsters & Allied, 2011 WL at (requiring employer to show Trucking Indus. Pension Fund, 73 F.3d 1, 5 (1st Cir. 1996) threat of imminent liquidation)). for summary 8 In addition, the procedural posture of this case, a motion ls cases. The equitable judgment, differs from that of the cited Court of Appea ent for a preliminary injunction. exception arose from the irreparable injury requirem 685-86 (7th Cir. 1987) ( Upon See Robbins v. McNicholas Transp. Co., 819 F.3d 682, arbitrator, and the gravity considering the employer s probability of success before the nts while awaiting decision, of any economic hardship caused by payment of installme deciding whether to issue the court should have discretion, similar to that exercised in power to compel payment. ); a preliminary injunction, to decline to use its injunctive ard in reviewing an order Mar Len, 30 F.3d at 623 (adopting the McNicholas stand compelling interim payments). 7 11 at most a The frivolousness prong has been applied rarely and is rator is almost recognition that if the fund s claim is frivolous if the arbit pioy that a court certain to rule for the employer then the plan is engaged in a *6 (quoting Trs. of the Chicago Truck may defeat. Eusa-Allied, 2011 WL at Pension Fund v. Drivers, Helpers and Warehouse Workers Union (Independent) (7th Cir. 1991)). The only examples of Central Transp., Inc., 935 F.3d 114, 119 Court are cases sufficiently frivolous claims under these circuits found by the t conflict with the where the fund seeks to extract withdrawal liability in explici *6 (citing Robbins, 819 provisions of MPPAA itself. Eusa-Allied, 2011 WL at y against employer F.2d 682 (finding fund s assessment of withdrawal liabilit explicit labor that ceased making contributions during labor dispute, despite §1398(2)). Viewing the dispute exceptiontcLliability under MPPAA, 29 U.S.C. more fik1ythán standard from the positive side, [al claim is colorable if it is ng, 27 F. Supp. not to have some merit. Mar-Len, 30 F.3d at 626; Crown Clothi 2d at 514. s claim is Black Miliwork does not seriously attempt to show that NIGPP to stand on so meritless as to be frivolous. And indeed NIGPP s claim seems by ERISA, Black solid contractual and statutory ground: The Plan is governed to the Plan, and Miliwork agreed in the Participation Agreement to contribute liability under the Company s unilateral withdrawal appears facially to trigger ng, for example, ERISA and the Plan s underlying documents. In Crown Clothi not frivolous even the court found that the fund s withdrawal liability claim was to liability. (The where the employer articulated a plausible factual defense in order to employer claimed that the fund had engineered its withdrawal such defense pressure it into accepting a collective bargaining agreement.) No one on which is proffered here. In short, NIGPP s claim does not strike me as the arbitrator is almost certain to rule in the employer s favor. er I need not look to the other prong irreparable harm to the employ the threat of because the Third Circuit [has] rejected the possibility that equitable relief irreparable harm to an employer [is] alone sufficient to warrant F. Supp. 2d at from interim withdrawal liability payments. Crown Clothing, 27 has stated 515 (citing Galgay, 105 F.3d at 141). Specifically, the Third Circuit that: cient a showing of irreparable harm to the employer is alone insuffi to warrant equitable relief from interim payment liability. In both instances, [the Fifth and Seventh Circuits] have recognized that withdrawing employers are often financially troubled companies. 12 Mar-Len, 30 F.3d at 626; Central Transport, 935 F.2d at 118-19. If such companies are allowed to defer paying their debt to the pension funds, and go out of business while liability is being litigated, the pension funds will be saddled with full liability for the unfunded pension benefits. The interim payment provisions are designed to diminish this risk. Mar-Len 30 F.3d at 626; Central Transport 935 F.2d at 118. We believe that it would contort the law if we were to allow the undercapitalized or financially precarious companies that pose the very risk to pension funds that MPPAA was designed to correct to because they pose that risk. It is inappropriate to refuse a preliminary injunction ordering interim withdrawal liability payments on the grounds that the payments might pose a financial risk to the employer. Galgay, 105 F.3d at 141. I understand that Black Miliwork has suffered business reverses and is from its in financial difficulty. Under the law, however, it cannot extricate itself the predicament by ceasing to pay its pension obligations. Nor is it free under ble law to allocate the burden of its financial problems to its pension-eligi ERISA workers or the other participants in this multiemployer plan. In short, from its leaves me no choice; I could not, if I wished, relieve Black Millwork . 9 See ERISA obligations solely because of financial hardship, however severe WL at *6 Crown Clothing, 27 F. Supp. 2d at 515; see also Eusa-Allied, 2011 (finding fund s claim not frivolous without analyzing irreparable harm). Accordingly, NIGPP s motion for summary judgment is granted. Of course an employer at risk of bankruptcy and employees at risk of losing on. their vested pension benefits might see the benefit of coming to an accommodati That is a different matter. 13 IV. CONCLUSION For the reasons stated above, NIGPP s Motion for Summary Judgment is GRANTED. An appropriate order follows. NIGPP is directed to submit, in appropriate form, a calculation of the withdrawal liability payments currently due, including interest, as well as liquidated damages consisting of the greater of 20% of the unpaid installments or the total interest owed, plus attorneys fees and costs. (Sections 12.06(d) and 10.03(c) of Ex. G to SMF). Such figures, if approved, will be incorporated in a final order. KEVIN MCNULTY United States District Judge Dated: August 1, 2013 14

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