NATIONAL SHOPMEN PENSION FUND v. DISA INDUSTRIES (August 8, 2011)

In the early 2000s, DISA Industries, an Illinois foundry-equipment business, made contributions to its Union's multiemployer pension plan. After only two years of contributions, DISA closed the plant covered by the plan and ceased its contributions. The Plan calculated the company's withdrawal liability at $602 a month. The company challenged the calculation and stated its intent to begin arbitration -- but also began paying the monthly liability. Several months later, the Plan recalculated the monthly liability at $978 and asked for an increase. DISA disagreed with the recalculation and filed a demand for arbitration. It also refused to pay the increased amount. The Plan filed suit in the District of Columbia seeking the recalculated amount. The district court there expressed its doubts about the recalculation but thought the issue should be resolved by the arbitrator. The court also did not think that the statutory obligation to pay withdrawal liability pending a challenge applied in the case of a recalculation. The court therefore dismissed the complaint. After the district court opinion, DISA withdrew its arbitration demand. The Plan then filed suit in Illinois contending that the company was in default and liable for the full amount. Judge Kendall (N.D. Ill.) concluded that the Plan's withdrawal liability calculation was in error, that the company was therefore not in default, and dismissed the complaint. The Union appeals.

In their opinion, Seventh Circuit Judges Bauer, Wood, and Williams reversed. Under ERISA, an employer who withdraws from a multiemployer pension plan is obligated to contribute to the plan that amount of money that represents its employees' share of the unfunded benefits. The employer is usually required to make the payments requested by the fund during any challenge to the calculation. If an employer challenges the calculation but refuses to make the requested payments, the plan may file suit to collect those interim payments. If, however, an employer refuses to make the requested payments without challenging the calculation or the liability, the Plan may file suit to collect the entirety of the liability and the company forfeits any defense that it could have raised with the arbitrator. Here, the Court rejected the district court's conclusion that the Plan could only impose the recalculated amount through arbitration. Instead, the Court concurred with the position taken by the PBGC that the plan may reassess withdrawal liability while the amount is still being challenged in litigation or arbitration. The Plan's reassessment is therefore valid. Since DISA terminated the arbitration proceedings and has not paid the Plan's assessment, it is in default and has forfeited its defenses.