hear the first case on calendar thirty two b j north pension fund versus nutrition management good morning good morning and may it please the court my name is john houston pope i represent appellant nutrition management services which was the defendant in the court below in two thousand and eight nutrition management fell behind its obligations to certain union benefit funds in two thousand and eleven it began repaying those obligations through extra payments every month five thousand a month for a period of time then eight thousand a month for another period of time by may of two thousand and fifteen the company thought it finished its obligation it paid by its reckoning two hundred sixty thousand dollars what it had fallen behind the records of fun say two hundred fifty thousand but we wouldn't be here over ten thousand dollars your honor if that was the case everyone would reconcile accounts and write a check what this case is about is that the pension fund subsequently filed suit and said no and much greater greater number is owed because we were charging you interest along the time that you were paying back on a monthly basis and that did not mention the delinquency policy it did not mention any adoption of the trust agreement that's early on but some time before the lawsuit was begun in two thousand and fourteen we signed  i'm sorry which we agreed to be about effective august first of two thousand and thirteen so it doesn't apply to obligations that arise before august first two thousand and thirteen your honor it applies to obligations arise after that date so all of that interest that was charged before august first of two thousand and thirteen had no contractual basis to be charged it couldn't be a couldn't because all those obligations arose or there wouldn't apply when it was unpaid as of the date that you agreed to be bound by the delinquency policy i can see where an argument be made for that and your honor but i don't believe it so because when you say that you're negotiating contracts under the supreme court decisions intact and in  e subsequent case that they are temporal the collective bargaining agreement so they apply to the events within their time period if you were wrong on that small point would that be a small sum of money or would that be considerable the amount of money that would be owed at that point would be a relatively small so some money on a cut out about half of the obligation in particular some of the higher amounts of interest involved because the way that the accounting was done for instance the two thousand and eight obligations continue to accrue interest and you by the time you get to two thousand and thirteen they have five years of ten percent interest on them this going on the way that is accounted for and so a substantial amount of this is prior to the aug first of two thousand and thirteen period is there any significance to the language in article twenty two of the original collective bargaining agreement referring to the agreement declaration atrocities or any meaning to which is something you have to do in order to avoid having a criminal violation for transferring monies to a union but it is not an adoption of the trust agreement or the things that go with the trust agreement i think that's consistent with the opinion that you wrote mention the trust agreements for the teamsters but don't adopt them and so there are at the significance i can say is is for that legal purpose of being clear of section three hundred two but otherwise it's not of any significance to the issues in this case i think squarely the point is what is the effect of two thousand and fourteen amendment in our view as the two thousand and fourteen amendment only applies to those obligations that arise beginning with the effective date of it and that's why we can see that those obligations arise beginning in august two thousand and thirteen would be subject to that earlier rising ones would not be why does interests are at the filing suit that's just eleven thirty two g two on the code section five two on the rest of section it says that if a lawsuit is brought that the the fund is entitle to interest on unpaid i'm just curious what what's the basis for that the statute doesn't say that the statute uses the words unpaid contributions and what ironworkers and other cases have tried to sort out was does that mean unpaid contributions as of the time suit begins or as of the time judgment is entered and the consensus is that it's as of the time suit begins normally and isn't doesn't interest in contract matters run from the date the obligation to pay is due it doesn't contract matters your honor yes that's that is essentially a contract matter no it depends on how you view it as that and it's not a matter of whether or not the the statutorily imposed interest is a statutory imposed interest your honor and that is distinct from any contract type it is the consensus of course because of the work particular wording of that section of the statute that the unpaid contributions must be unpaid at not in dispute we agree that we agree the suit triggers an interest obligation and we disagree over one of the rates should be the delinquency policy rate or whether it should be the statutory rape that's correct your hon the if i'm going to dress briefly the notion of the whether or not the delinquency policy can be considered a plan for purposes of eleven thirty two g two i think that it's clear from cases such as silverman that what the statute defines as being a plan is narrow it is more narrow than things such as you can't look to the to the trust indenture or the the the delinquency policy  twenty four before in the code it's a list of the sorts of documents that exist that you have to turn over and it distinguishes between trust indentures other instruments under which the plan is governor and the plan and so the plan is obviously something distinct and that's why we don't think the statute applies and under your reading of this however the the young the plan is making an interest free loan to your client correct i mean that's how it works out well that they did that until they got that and until they got the client to sign on to their policies yes if they fail to do that or fail to file suit then they're allowing the company to get away interest have this recalculate can you be lamar's to have the obligation to recalculate we believe that there's only five to ten thousand dollars and we're not we're not sure it's going to have to be sorted out which it is remaining on the first audit period that was not paid before suit was brought we would get that clarified and then and then impose interest accordingly and we would recalculate the interest on the second audit period i think the third audit period is essentially unchanged for purposes of this recalculate the amount of the another case that would be heard in this court next month having to do with the health fund the cases were parallel in every respect including the they had a brief trial in front of judge forrest in that case the tourney's had fifty thousand dollars  good morning and may it please the court my name is richard siegel counsel to the plaintiff appellee in this case the thirty two b j north pension fund and its board of trustees the first argument the defendant has raised in this appeal is that it was as the court has noted entitled to pay contributions over for what we have referred to as the first audit many years late without owing any interest on those con those late contributions whatsoever defendant takes this position even though the district court made a finding of fact at trial that the pension fund never greed to forego interest that finding defendant does not appeal  what you said didn't agree not to where does the obligation to come the obligation to pay your honor arises from defendant's collective bargaining agreement which specifically references the dis pension funds trust agreement under this court's standard in jaspin the reference to the trust agreement which does significantly more than counsel stated is sufficient by referencing the trust agreement and by agreeing to contribute to this pension fund the defendant is thereby bound to the trust agreement what are the words as i recall to maintain its to maintain the transponder and the city i'm sorry is the defendant c b a expressly contemplates that the pension fund will be administer according to its trust agreement the trust agreement is relevant in a number of ways for one thing the trust agreement specifically abandoned amended from time to time why would you need that specific contract language if you think that references section twenty two of the original c b i is sufficient well that was that is something that the bargaining parties came up to the there's been some suggestion of well the fund did this the funded that the fund is not a party to these contracts the fund is a beneficiary of these agreements and the answer your honor what we would see is the agreement simple the latter latter agreement certainly some simply clarified defendant's obligation it went from one prong of jasper in which is reference reference being sufficient under jaspin to the other prong of jaspin which is express express adoption i would further know iran or that how is what you read to me any adoption we don't position we take the position that it is that by agreeing that to contribute to the pension fund and and and an interesting case the pension fund there had a policy in which employer was subject to a penalty for failure to maintain adequate records for an audit and the fund attempted to apply that penalty which has no statutory basis at all fifty percent penalty right if i believe that is correct and fifty percent of the other of all of the contributions made in the prior here the fund is seeking preferentially it's the rate set but under the terms of the plan by agreement by contract principles the contract principle again being the defendant having entered into a contract there was a reference earlier that there no contract will basis for the defendant entered into it a collective bargaining agreement a contract agreeing to be bound to this by reference and then later express adoption agreeing to be bound of this trust agreement the trust agreement in under the terms of the trust agreement and that existed at the time the the not only does it authorize the trustees to develop just this type of delinquency policy but the trust agreement itself expressly provides that their interest rate under the terms of the for the plan will be that as the trustees shall set from time to time the trust agreement itself to which defendant agreed to be bound specifically authorizes the trustees to set the appropriate interest rate itself does not set the rate it still requires another document by the by the trustees write it would require some other document or some other action yes it would and i understand that there's but these are all the defendant has raised this question of this single document argument adopted by the first circuit never adopted by this court and i think that that is a total red herring this the issue even if this court was to adopt that line of reasoning the reason that the court in the first circuit held that was because it helped found that that was a matter dealing with withdrawal liability and although defendant agreed to be bound of the trust agreement there was never a reference to withdraw liability here that isn't the case here the defendant agreed to be bound of the trust agreement and then the trust agreement specifically authorizes the trustees to set the a pleasurable interest rate and use greed down you're still talking about the collective bargaining agreement the collective bargaining agreement prior to the twenty thirteen effective use of the later green yes right one other note i would make with respect to the impact of  agreement which is simply that both agreements were put before or the district court sitting is try or a fact the district court heard all the evidence presented with respect to those agreements and then sitting is try fact concluded that notwithstanding the existence of the second agreement the first agreement was sufficient to bind the defendant to the trust agreement that is a finding of fact made by the district court and obviously that can only be overturned  day because the district court was presented with both agreements and it was it was late it was left with the charge of determining whether the first agreement in light of the existence of the second agreement was that whether the district court in properly interpreted what defendant's collective bargaining our obligation was was a question of fact any authority for that standing here right now i do not know your hon r i would also want to know just turning briefly to the issue of what the appropriate interest for it was once the lawsuit was filed i would just like to point out that your honor was entirely correct absolutely nothing in section five zero two g provides that interest only starts when the lawsuit was filed that has that is their case law to support that there are some but there's nothing in rebuttal with regard to what the one thousand nine hundred ninety eight collective bargaining agreement means and whether or not it's sufficient that just the words trust agreement appear in it in order to make it binding i think silberman and jospin both answer that question silverman says and referring to what central states held which is a supreme court opinion we have to give it some deference said when the the supreme court has only recognize a cause of action and or section five zero two a for violating a plan term when the employer violator plantar the c b a expressly bound the employer to perform expressly bound the word expresses there and the same terms are in jaspin when it talks about really what it means by referencing it then talks about distinguishing the cases where there is not an express adoption so i think it needs to be very express in the language that appears in that article is not an express adoption of anything the trust agreement or its policies or anything else we can see that by the two thousand and fourteen amendment with regard to whether or not the the the agreements are an issue of fact or an issue of law when you read an agreement i think the judge newman you are suggesting this week we've got the citations on a case when you're just interpretive agreement on its face it is a question of law review did no vote by this court and that is why we call on this court to take a look at this language and agree with us that it is not properly interpreted as the district  not have a great deal of respect for the district court judge i knew or when she was in private practice before the bench i'm great deal of respect for but i think she just got it wrong here and she got it wrong because it's one hundred eighty degrees from another case that she decided six years earlier called concourse village which we've