United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

Nos. 08-2008/08-2744

___________

Lee Borntrager; Donald P. Byers; *

James C. Chapman; Raymond D. *

Northrup; James L. Saddler; Thomas *

St. John; CRST Flatbed, Inc.; CRST *

Van Expedited, Inc., formerly known *

as CRST, Inc., *

* Appeals from the United States

Appellants, * District Court for the

* Northern District of Iowa.

 v. *

*

Central States Southeast and *

Southwest Areas Pension Fund, *

*

Appellee. *

___________

Submitted: May 12, 2009

Filed: August 21, 2009

___________

Before RILEY, SMITH, and COLLOTON, Circuit Judges.

___________

RILEY, Circuit Judge.

CRST Flatbed, Inc., CRST Van Expedited, Inc. (collectively, CRST), and six

current and former employees of CRST (Participants), sued Central States, Southeast

and Southwest Areas Pension Fund (Central States) after Central States expelled
1

The Honorable Jon Stuart Scoles, United States Magistrate Judge for the

Northern District of Iowa, to whom the parties consented to the exercise of

jurisdiction under 28 U.S.C. § 636(c).

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CRST from the pension fund. The district court1

 granted summary judgment in favor

of Central States, and awarded Central States attorney fees and litigation costs. CRST

and the Participants appeal the district court’s rulings regarding the grant of summary

judgment and the award of attorney fees and litigation costs. We affirm.

I. BACKGROUND

Central States is a multiemployer employee benefit plan governed by a Trust

Agreement and administered by ten Trustees, five of whom are selected by

contributing employers and five of whom are selected by unions associated with the

International Brotherhood of Teamsters. Central States is regulated by the Employee

Retirement Income Security Act of 1974 (ERISA), as amended by the Multiemployer

Pension Plan Amendment Act of 1980 (MPPAA), 29 U.S.C. §§ 1001-1461.

Under Central States’s plan, actuaries created forty-one benefit classes which

determine the fixed benefit amount a participating employee will receive from

retirement until the end of his or her life. The benefit classes are based upon the cost

estimates of the actuaries and assume the fund will receive contributions from younger

employees to help pay the benefits of retired employees. If Central States does not

receive contributions from younger employees, the actuarial assumptions may become

financially unsound, and Central States may be unable to pay guaranteed benefits.

To guard against Central States becoming financially unsound, Article III § 1

of the Trust Agreement creates an “adverse selection” rule, which provides, in part,

The Trustees are authorized to reject any collective bargaining agreement

of an Employer (and all contributions from the Employer) whenever they

determine either that the agreement is unlawful and/or inconsistent with
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any rule or requirement for participation by Employers in the Fund

and/or that the Employer is engaged in one or more practices or

arrangements that threaten to cause economic harm to, and/or

impairment of the actuarial soundness of, the Fund (including but not

limited to any arrangement in which the Employer is obligated to make

contributions to the Trust Fund on behalf of some but not all of the

Employer’s bargaining unit employees, and any arrangement in which

the Employer is obligated to make contributions to the Trust Fund at

different contribution rates for different groups of the Employer’s

bargaining unit employees). Any such rejection by the Trustees of a

collective bargaining agreement shall be effective as of the date

determined by the Trustees (which effective date may be retroactive to

the initial date of the term of the rejected agreement) and shall result in

the termination of the Employer and all Employees of the Employer from

further participation in the Fund on and after such effective date.

In 1990, Central States promulgated Special Bulletin 90-7, which expounded

on the adverse selection rule. Special Bulletin 90-7 explained the adverse selection

rule “protect[s] the financial soundness of” Central States by prohibiting employment

practices which “restrict[] pension coverage to only those employees likely to receive

a benefit and exclude[] those employees less likely to receive a benefit.” The bulletin

also provided a non-exhaustive list of three examples of adverse selection, including

(1) unequal contribution on behalf of employees who perform the same type of work;

(2) contribution for certain individuals rather than a group of employees, or the

creation of a non-covered employee group; and (3) classification of full-time

employees subject to contribution as casual, part-time, or temporary.

CRST contributed to Central States under a collective bargaining agreement

with Chauffeurs, Teamsters and Helpers Local Union 238 (Local 238), and a separate

collective bargaining agreement with Chauffeurs, Teamsters and Helpers Local Union

142 (Local 142). As a participating employer, CRST signed a Participation

Agreement with Central States which bound CRST to the terms, rules, and regulations

of the Trust Agreement.
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In March 2002, Central States notified CRST that Central States was reviewing

CRST’s actions in relation to Local 238 and Local 142 for possible violations of the

adverse selection rule. Central States’s investigation of CRST revealed CRST’s

participating employees in Local 238 decreased from six employees in 1992 to two

employees in 2002 with no new hires in the ten years before the investigation, and

also found CRST admitted it outsourced work when Local 238 employees departed

from CRST. Central States similarly found CRST’s participating employees in Local

142 declined from seventeen in 1992 to seven in 2002 with no new hires since March

1989, and CRST admitted participation in Central States on behalf of Local 142

employees declined based upon decreased business and CRST’s decision to replace

departing Local 142 employees with independent contractors. Central States’s

Actuarial Services Department further determined the future benefit accruals of CRST

employees covered by the collective bargaining agreements with Local 238 and Local

142 would exceed the contributions Central States would receive from CRST for these

employees.

On August 21, 2002, Central States’s Contracts Subcommittee recommended

the Board of Trustees expel CRST from Central States. Based upon the

recommendation and the findings of Central States’s investigation and Actuarial

Services Department, the Board of Trustees unanimously voted to expel CRST from

Central States because (1) CRST’s collective bargaining agreements violated Central

States’s rules and requirements of participation, and (2) CRST was “engaged in

practices and arrangements that cause, and threaten to cause economic harm to, and

impairment of the actuarial soundness of the Pension Fund.” Central States

terminated the participation of CRST and its Participants in Central States on

September 29, 2002, and assessed complete withdrawal liability against CRST under

ERISA.
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II. PROCEDURAL HISTORY

On September 24, 2002, CRST and the Participants filed a complaint in the

district court seeking declaratory and injunctive relief against Central States for

wrongful expulsion of CRST. CRST and the Participants amended the complaint to

include the following five causes of action: (1) Central States wrongfully expelled

CRST; (2) Central States’s expulsion of CRST tortiously interfered with CRST’s

collective bargaining agreements with Local 238 and Local 142; (3) Central States

violated ERISA, 29 U.S.C. § 1140, when Central States expelled CRST; (4) Central

States, as a third party beneficiary to CRST’s collective bargaining agreements with

Local 238 and Local 142, breached the collective bargaining agreements and violated

the Taft-Hartley Act by expelling CRST; and (5) Central States engaged in disparate

treatment by failing to enforce equally the adverse selection rule against another

participating employer, United Parcel Service (UPS). CRST and the Participants

based subject matter jurisdiction for their suit upon 29 U.S.C. § 1451. The amended

complaint asked the district court to (1) reinstate CRST into Central States; (2) require

Central States to receive contributions from CRST; (3) grant CRST employees

retroactive credits for service since the expulsion; (4) order reimbursement of the

withdrawal liability assessed against, and paid by, CRST; and (5) award costs and

attorney fees to CRST.

Central States moved to dismiss CRST’s and the Participants’ amended

complaint for lack of subject matter jurisdiction and failure to state a claim under Fed.

R. Civ. P. 12(b)(1) and (6). The district court found subject matter jurisdiction was

proper under 29 U.S.C. § 1451 and denied Central States’s Rule 12(b)(1) motion, but

granted Central States’s Rule 12(b)(6) motion on counts two, three, four, and five of

the amended complaint.

On July 2, 2003, CRST and the Participants filed a second amended complaint

which added 29 U.S.C. § 1132(e), 28 U.S.C. § 1331, and federal common law as bases

for jurisdiction. Central States moved to dismiss the second amended complaint based
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upon Fed. R. Civ. P. 12(b)(1) and (6), and the district court, for the same reasons

provided on the first motion to dismiss, denied the motion.

While Central States’s motions to dismiss were being litigated, CRST and the

Participants moved the district court to compel discovery of documents outside the

administrative record which pertained to Central States’s application of the adverse

selection rule to UPS. The district court denied the motion, and CRST moved the

district court to remand the case to the Trustees for further development of the record

regarding Central States’s application of the adverse selection rule to UPS. The

district court granted CRST’s and the Participants’ motion, remanded the case to the

Trustees, and ordered Central States to allow CRST and the Participants discovery

regarding Central States’s treatment of UPS.

Central States appealed to this court the district court’s remand order and the

district court’s denial of Central States’s motion to dismiss for lack of jurisdiction.

See Borntrager v. Cent. States, Se. and Sw. Areas Pension Fund, 425 F.3d 1087, 1090

(8th Cir. 2005). We dismissed Central States’s appeal for lack of appellate

jurisdiction, holding the district court’s rulings were not final appealable orders or

actions. See id. at 1090-93. In a footnote, we addressed the subject matter jurisdiction

issue, stating,

As our decision in [Cent. Hardware Co. v. Cent. States, Se. & Sw.

Areas Pension Fund, 770 F.2d 106 (8th Cir. 1985),] makes clear, the

contention there is no federal jurisdiction over CRST’s wrongful

expulsion claim is plainly without merit. Before enactment of ERISA in

1974, § 301 of the Labor Management Relations Act, 29 U.S.C.

§ 185(a), conferred federal jurisdiction over claims alleging breach of a

pension or welfare benefit trust agreement that was an integral part of a

collective bargaining agreement. ERISA of course greatly expanded

federal regulation of pension funds and granted federal courts broad

jurisdiction over civil actions to interpret and enforce those plans. In

Central Hardware, the district court accepted jurisdiction over a wrongful
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expulsion claim under [29 U.S.C.] § 1132(e), and we reviewed the merits

of that claim without discussing the jurisdiction issue.

In this case, the district court may have erred in assuming

jurisdiction under 29 U.S.C. § 1451 if expulsion is not an “act” under

Subtitle E [of ERISA], but that issue can be taken up on appeal from the

final judgment. Moreover, if the expulsion was valid, the district court

will need to decide whether such an expulsion triggers withdrawal

liability under the MPPAA, an issue that may be subject to mandatory

arbitration. Section 1451 clearly confers federal jurisdiction over

CRST’s claim for reimbursement of that statutory liability.

Id. at 1092 n.1 (citations omitted).

On remand, the Trustees affirmed their earlier decision to expel CRST, and

CRST and the Participants filed a third amended complaint. The third amended

complaint, which only alleged a claim for wrongful expulsion, added 29 U.S.C.

§ 185(a) as a basis for subject matter jurisdiction, and asked the district court to

reimburse CRST’s withdrawal liability payment and distribute the payment to the

Participants pro rata rather than reinstating CRST into Central States. Central States

moved to dismiss the third amended complaint, and the district court denied the

motion.

On October 1, 2007, the parties filed cross motions for summary judgment. The

district court denied CRST’s and the Participants’ motion, granted Central States’s

motion, and dismissed the third amended complaint. The district court found

(1) Central States lawfully exercised its authority to expel CRST under Article III § 1

of the Trust Agreement; (2) Central States did not abuse its discretion or arbitrarily or

capriciously expel CRST based upon CRST’s employment practices or Central

States’s treatment of UPS; and (3) Central States did not act in bad faith or with an

improper motive in expelling CRST.
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After judgment was entered on Central States’s motion for summary judgment,

Central States moved the district court for attorney fees and litigation costs based

upon Article III § 6 of the Trust Agreement, which provides,

Whenever the Trustees exercise their authority to reject a

collective bargaining agreement of an Employer and effect the

termination of the Employer and all Employees of the Employer from

further participation in the Fund on and after an effective date

determined by the Trustees, and there is related litigation to which the

Trustees (or any of the Trustees) and/or the Fund and the Employer are

parties (regardless of which entity or entities commenced the litigation),

the Trustees and the Fund, at the conclusion of the litigation by judgment

or settlement (except by judgment that in effect invalidates the Trustees’

rejection of the collective bargaining agreement), shall be entitled to

recover from the Employer a payment in the amount of the attorney’s

fees and litigation costs incurred by the Trustees and/or the Fund in the

course of the litigation.

CRST and the Participants argued Central States was not entitled to attorney

fees under ERISA, 29 U.S.C. § 1132(g), but the district court granted Central States’s

motion under the Trust Agreement, and awarded Central States $79,229.95 in attorney

fees and litigation costs. CRST and the Participants appeal the district court’s

summary judgment ruling and the district court’s award of attorney fees and litigation

costs.

III. DISCUSSION

A. Subject Matter Jurisdiction

As a preliminary matter, Central States argues the district court lacked subject

matter jurisdiction on the bases alleged by CRST and the Participants in the third

amended complaint. We have the right and duty to raise and determine the district

court’s subject matter jurisdiction at any time. See Arnold v. Wood, 238 F.3d 992,

994 (8th Cir. 2001) (“We are required to ascertain the existence of jurisdiction,

whether subject-matter or appellate, at the outset of an appeal. We must resolve
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outstanding questions of jurisdiction before proceeding to analyze the merits. It is our

obligation to notice jurisdictional infirmities, whether the parties notice them or not.”

(citations omitted)). We review the district court’s subject matter jurisdiction de novo.

See Keene Corp. v. Cass, 908 F.2d 293, 296 (8th Cir. 1990).

In Borntrager, 425 F.3d at 1092 n.1, we stated 29 U.S.C. § 185 provides federal

jurisdiction over the wrongful expulsion claim, and declared ERISA, specifically 29

U.S.C. § 1132, “greatly expanded” federal jurisdiction over interpretation and

enforcement of pension funds. Id. We agree with the statement in Borntrager that the

district court had jurisdiction over the wrongful expulsion claim under 29 U.S.C.

§ 185. See Schneider Moving & Storage Co. v. Robbins, 466 U.S. 364, 366 n.2

(1984) (“Section 301(a) of the [Labor Management Relations Act, 29 U.S.C.

§ 185(a),] provides a federal forum for suits to enforce labor contracts, including

pension and welfare fund agreements. Section 502 of ERISA [29 U.S.C. § 1132] also

provides a federal forum for enforcement of the various duties imposed by such trust

fund agreements.”).

B. Motion for Summary Judgment

CRST and the Participants contend the district court erred in granting summary

judgment to Central States because (1) Central States lacked the contractual authority

to expel CRST, (2) CRST’s expulsion was contrary to federal labor law and ERISA,

and (3) CRST’s expulsion was contrary to this court’s precedent.

We review a district court’s grant of summary judgment de novo. See Cardinal

Health 110, Inc. v. Cyrus Pharm., LLC, 560 F.3d 894, 898 (8th Cir. 2009).

“[V]iewing the facts in the light most favorable to the nonmoving party,” summary

judgment should be granted “if there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law.” Franklin v. Local 2 of the

Sheet Metal Workers Intern. Ass’n, 565 F.3d 508, 520 (2009) (internal marks and

citation omitted).
2

CRST and the Participants have not challenged Central States’s reasons for

expelling CRST, which would be subject to arbitrary, capricious, and abuse of

discretion review. See Cent. Hardware, 770 F.2d at 109. We choose not to address

the issue. See Anderson v. Larson, 327 F.3d 762, 771 (8th Cir. 2003) (“Our general

rule is a party’s failure to raise or discuss an issue in his brief is to be deemed an

abandonment of that issue.” (internal marks and citations omitted)).

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1. Central States’s Expulsion Authority

CRST and the Participants first argue Central States did not have the contractual

authority to expel CRST based upon the use of independent contractors and a decline

in employee participation. CRST and the Participants concede Central States can

expel an employer for adverse selection in certain circumstances involving the

employer’s employees. However, CRST and the Participants contend the collective

bargaining agreements, the Participation Agreement, and the Trust Agreement do not

allow Central States to expel CRST based upon alleged adverse selection involving

the use of independent contractors because (1) the documents authorize CRST to use

independent contractors who are barred by federal law to participate in Central States,

and (2) under the doctrine of ejusdem generis, the language and examples of adverse

selection in the Trust Agreement and Special Bulletin 90-7 limit expulsion based upon

adverse selection to employment practices involving employees, not independent

contractors. CRST and the Participants contend Central States’s expulsion of CRST

was unlawful because CRST had enrolled all eligible employees in Central States, and

CRST was not in violation of the collective bargaining agreements, Participation

Agreement, or the Trust Agreement.

We review the terms of a contract de novo. See Cardinal Health, 560 F.3d at

898 (citation omitted). Central States’s authority under the collective bargaining

agreements, the Participation Agreement, and the Trust Agreement is “freely

reviewable.”2

 Cent. Hardware, 770 F.2d at 109 (internal marks and citations omitted).

However, Central States’s “determination that the trust documents authorize their

[actions] has significant weight, for the trust agreement explicitly provides that ‘any
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construction [of the agreement’s provisions] adopted by the Trustees in good faith

shall be binding upon the Union, Employees and Employers.’” Cent. States, Se. and

Sw. Areas Pension Fund v. Cent. Transp., Inc., 472 U.S. 559, 568 (1985); see also

Cent. Hardware, 770 F.2d at 110.

Central States did have the contractual authority to expel CRST. Article III § 1

of the Trust Agreement allows Central States “to reject any collective bargaining

agreement . . . [when] the Employer is engaged in one or more practices or

arrangements that threaten to cause economic harm to, and/or impairment of the

actuarial soundness of, the Fund.” This language does not limit Central States’s

authority to certain forms of employment practices. Central States only has to find an

employer is engaged in “one or more” employment practices which may threaten the

financial or actuarial viability of the fund. Once Central States makes such a

determination, it is authorized to act. See Cent. Hardware, 770 F.2d at 110

(concluding “the trust agreement gives [Central States] authority to reject payments

from participating employers which threaten [Central States’s] actuarial soundness”);

see also Cent. Transp., 472 U.S. at 570-71 (stating Central States has “all such powers

as are necessary or appropriate for the carrying out of the purposes of the trust,”

including the authority to fulfill fiduciary duties to protect plan beneficiaries (internal

marks and citations omitted)).

The examples provided in Article III § 1 and Special Bulletin 90-7 do not limit

Central States’s authority, because the examples are not all-encompassing. The

example in Article III § 1 is preceded by “included but not limited to,” and Special

Bulletin 90-7 states the list of examples is “not exhaustive” and “not intended to be

an all inclusive list of unacceptable arrangements.” Special Bulletin 90-7 further

disclaims that “[a]ny collective bargaining arrangement that encourages adverse

selection is subject to rejection by the Board of Trustees.” The examples, thus, did not

limit Central States’s authority to expel an employer if the employer uses an

employment practice which threatens to harm or impair the fund.
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CRST’s legal right to use independent contractors also does not affect Central

States’s authority to expel CRST under the adverse selection rule. Central States did

not expel CRST because CRST was using independent contractors. There is no

evidence in the record indicating Central States was attempting to prohibit CRST’s

use of independent contractors or require contributions on behalf of independent

contractors. Central States expelled CRST because CRST had an actuarially adverse

employment group when CRST shifted work to independent contractors rather than

hiring new employees. Central States’s determination that this transfer of work was

adverse to the fund was permissible under Article III § 1.

Similarly, CRST’s compliance with the collective bargaining agreements does

not impair Central States’s expulsion authority. The bargaining agreements do not

override the authority granted Central States in Article III § 1 of the Trust Agreement.

See Cent. Hardware, 770 F.2d at 108, 110 (holding Central States had authority under

the Trust Agreement to expel an employer even though the employer had tendered

payments to Central States in compliance with a collective bargaining agreement); see

also Schneider Moving & Storage, 466 U.S. at 373-74 (explaining Central States was

not bound by an arbitration provision found in collective bargaining agreements).

Given the broad language of Article III § 1 of the Trust Agreement and the

significant weight afforded Central States’s determination that it had the authority to

expel CRST, we are convinced Central States did have the authority to expel CRST.

See Cent. Hardware, 770 F.2d at 110.

2. Contravention of Federal Labor Law

CRST and the Participants next argue Central States’s expulsion of CRST was

unlawful because the expulsion was contrary to federal labor law. CRST and the

Participants contend, if the expulsion was based upon CRST’s use of independent

contractors, Central States’s expulsion of CRST contravened the Labor Management

Relations Act (LMRA) because LMRA prohibits independent contractors from
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participating in the fund. CRST and the Participants also assert Central States’s

expulsion was contrary to MPPAA because Congress established withdrawal liability

as a fund’s specific remedy for declining employee participation. CRST and the

Participants maintain Central States’s expulsion of CRST was not authorized by, and

outside of, the MPPAA withdrawal provisions because (1) the expulsion created an

unauthorized complete withdrawal which substituted Central States’s judgment for

Congress’s, and (2) CRST’s transfer of work to independent contractors did not

trigger MPPAA partial withdrawal liability.

On de novo review, see WWC License, L.L.C. v. Boyle, 459 F.3d 880, 890 (8th

Cir. 2006), CRST’s and the Participants’ LMRA arguments are not persuasive. As

discussed earlier, Central States did not expel CRST based upon CRST’s use of

independent contractors, but instead expelled CRST for maintaining an actuarially

adverse employee group by failing to hire new employees and shifting work to

independent contractors when employees departed. Thus, Central States’s expulsion

of CRST was not based upon an improper or unlawful reason, and did not constitute

a violation of LMRA.

CRST’s and the Participants’ argument regarding MPPAA is equally

unpersuasive. In Cent. Hardware, 770 F.2d at 108, 110, we held Central States had

authority under the Trust Agreement to expel an employer when the employer’s

bargaining unit decreased. Further CRST’s and the Participants’ brief concedes

Central States has authority to expel an employer under Article III § 1 of the Trust

Agreement, and CRST and the Participants cite no provision of ERISA or MPPAA

which explicitly constrains Central States’s Trust Agreement authority. Given our

holding in Cent. Hardware, and CRST’s and the Participants’ concession, CRST and

the Participants cannot now argue the MPPAA withdrawal provisions limit Central

States’s expulsion authority. The expulsion of CRST did not contradict federal labor

law. See Cent. Transp., 472 U.S. at 570-71 (stating Congress did not enumerate every

power of pension fund trustees in ERISA, but instead outlined trustees’ powers based
3

A portion of CRST, Inc. not relevant to this appeal was overruled by Robbins

v. Prosser’s Moving and Storage Co., 700 F.2d 433, 443 (8th Cir. 1983) (en banc), and

CRST, Inc.’s holding that Central States’s audit authority is limited to the language

of the Trust Agreement covering “employees” was contradicted by Cent. Transp., 472

U.S. at 563, 581 (holding Central States has authority to audit employment records of

employees whom the employer claims are not plan participants).

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upon the trustees’ common law fiduciary duties and the general premise that trustees

“have all such powers as are necessary or appropriate for the carrying out of the

purposes of the trust” (internal marks and citations omitted)).

3. Violation of Eighth Circuit Precedent

CRST and the Participants also argue Central States’s expulsion violated our

opinion in Cent. States, Se. and Sw. Areas Pension Fund v. CRST, Inc., 641 F.2d 616

(8th Cir. 1981). CRST and the Participants contend CRST, Inc. adjudicated the

contractual authority of Central States under ERISA and limited the authority to

situations involving employees and plan participants. CRST’s and the Participants’

argument creates a legal question which we review de novo. See Sheehan v. Guardian

Life Ins. Co., 372 F.3d 962, 966 (8th Cir. 2004).

In CRST, Inc., 641 F.2d at 617, we addressed “whether CRST is required to

make available to [Central States] for audit purposes the employment and earnings

records of all CRST employees including employees who may not be covered by a

collective bargaining agreement requiring contributions to the Funds on their behalf.”

To address the issue, we analyzed Central States’s audit authority under the

contractual documents and ERISA. Id. at 618. We held Central States’s audit

authority was limited to information of employees covered by a collective bargaining

agreement because (1) the audit provision was limited to “employees,” (2) the

definition of employees only encompassed employees covered by a collective

bargaining agreement, and (3) ERISA limited Central States’s audit right to its

contractual authority.3

 Id. at 618-19.
4

Central States also argues summary judgment was proper because CRST and

the Participants requested relief which could not be granted. Because we affirm the

district court’s grant of summary judgment based upon the Trust Agreement, we do

not address Central States’s additional argument.

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CRST, Inc. did not limit Central States’s contractual expulsion authority to only

situations involving employees. First, CRST, Inc. involved a provision expressly

limited to covered “employees.” CRST and the Participants cite the following

statement for support of their argument: “fiduciary obligations mandated by ERISA

are owed only to participants and beneficiaries . . . who may become eligible to

receive a benefit from an employee benefit plan . . . [and not] [n]on-covered

employees” Id. at 619. This statement, however, did not limit Central States’s

contractual abilities under the Trust Agreement. The statement instead cited 29 U.S.C.

§ 1104 and outlined the broad fiduciary duties of pension fund trustees under ERISA

to protect the fund. See Cent. Transp., 472 U.S. at 570-71 (citing 29 U.S.C. § 1104

when discussing the powers and fiduciary duties of pension plan trustees to carry out

the purposes of the trust).

The statement also supports our finding that Central States’s expulsion

authority is not limited to situations involving employees. Article III § 1 authorizes

Central States to expel an employer to protect the financial and actuarial viability of

the fund. When Central States finds a particular employment practice may threaten

to or actually does harm the fund, Central States’s authority to expel an employer

allows Central States to fulfill its fiduciary obligations to plan beneficiaries and

participants to maintain a fund which will be able to pay guaranteed benefits. CRST,

Inc. thus did not limit Central States’s expulsion authority, and Central States’s

expulsion of CRST did not violate our precedent. The district court did not err in

granting Central States’s motion for summary judgment.4
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C. Attorney Fees and Litigation Costs

CRST finally argues the district court erred in awarding attorney fees and

litigation costs because (1) the district court was required to award attorney fees and

litigation costs, if at all, under 29 U.S.C. § 1132 instead of under Article III § 6 of the

Trust Agreement, and (2) the Trust Agreement was a contract of adhesion.

1. Preemption and 29 U.S.C. § 1132(g)(1)

CRST first claims the district court’s award of attorney fees and litigation costs

to Central States was erroneous because the district court did not use 29 U.S.C.

§ 1132(g)(1), and its corresponding five factor test, which CRST asserts preempted

Article III § 6 of the Trust Agreement.

Central States responds CRST failed to argue in the district court why 29 U.S.C.

§ 1132(g)(1) applies to this case, and has thus waived the argument. Although CRST

did not memorialize the exact arguments it makes on appeal in its resistance to Central

States’s motion for attorney fees, CRST did argue the application of 29 U.S.C.

§ 1132(g)(1) and its five factor test in the district court. The district court’s order

recognized CRST’s attempt to apply 29 U.S.C. § 1132(g)(1). CRST thus sufficiently

raised the issue of the applicability of 29 U.S.C. § 1132(g)(1) in the district court. See

Universal Title Ins. Co. v. United States, 942 F.2d 1311, 1314 (8th Cir. 1991)

(explaining whether an issue has been waived for appeal is not determined by a new

argument raised on appeal, but instead whether the new argument raises a new issue

on appeal). Further, whether Article III § 6 is preempted by ERISA is a purely legal

question which does not require additional evidence or argument, and which we can

review de novo for the first time on appeal. See Orr v. Wal-Mart Stores, Inc., 297

F.3d 720, 725 (8th Cir. 2002); Sheehan, 372 F.3d at 966.

Under the American Rule, a successful litigant is not entitled to attorney fees

unless attorney fees are authorized by statute or allocated in an enforceable contract.

See Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443, 448
5

CRST, conceding CRST is not entitled to sue under § 1132(a), notes the

Participants were also plaintiffs in this action. If the district court would have

awarded attorney fees and litigation costs against the Participants, our analysis would

involve the Participants. Because that is not the situation in this case, we make no

determination on that issue.

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(2007). Under 29 U.S.C. § 1132(g)(1), a district court may, in its discretion, award

attorney fees “[i]n any action under this subchapter . . . by a participant, beneficiary,

or fiduciary.” 29 U.S.C. § 1144(a) provides, “[ERISA subchapters I and III] shall

supersede any and all State laws insofar as they may now or hereafter relate to any

employee benefit plan.”

CRST contends, under 29 U.S.C. § 1144(a), Article III § 6 of the Trust

Agreement was preempted by 29 U.S.C. § 1132(g)(1). CRST also asserts 29 U.S.C.

§ 1132(g)(1) provides a specific remedy fashioned by Congress which could not be

altered by the Trust Agreement in this case. We disagree.

The language of 29 U.S.C. § 1132(g)(1) authorizes a district court to award

attorney fees in an action brought by “a participant, beneficiary, or fiduciary.”

(emphasis added). Based upon the plain language of the statute, 29 U.S.C.

§ 1132(g)(1) does not apply to employers, and does not preempt a contractual

provision which allows attorney fees against an employer in litigation involving

expulsion of the employer from a pension fund. Cf. 29 U.S.C. § 1132(g)(2)(D)

(requiring an award of attorney fees to a pension plan in an action brought by the plan

against an employer for delinquent payments). In this case, the district court awarded

attorney fees against CRST, the employer. Article III § 6 authorized this award. The

district court did not err in awarding attorney fees to Central States under the Trust

Agreement.5
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2. Contract of Adhesion

CRST also asks this court to render the attorney fees provision in Article III § 6

unenforceable as a contract of adhesion. CRST claims Article III § 6 is “unilateral,

one-sided and unenforceable” because (1) CRST is not a party to the Trust

Agreement; (2) CRST does not have a right to review or accept modifications or

amendments to the Trust Agreement; (3) CRST does not know when Article III § 6

was adopted; (4) CRST did not have bargaining ability over Article III § 6; and

(5) Article III § 6 deters employers and employee beneficiaries from bringing a lawful

action under ERISA to challenge expulsion of an employer.

CRST failed to raise this argument in the district court. Unlike CRST’s

preemption argument, this argument involves factual contentions which may be

impacted by additional evidence or argument. See Universal Title, 942 F.2d at 1314-

15. We will thus review CRST’s argument for plain error and will reverse the district

court “only to prevent a miscarriage of justice.” Cole v. Intern. Union, United Auto.,

Aerospace & Agric. Implement Workers of Am., 533 F.3d 932, 936 (8th Cir. 2008)

(citation omitted).

Under Article XIV § 7, the Trust Agreement is governed and controlled by

Illinois law. Under Illinois law, “[a]n adhesion contract is generally a form agreement

submitted to a party for acceptance without any opportunity to negotiate terms.”

Endsley v. City of Chicago, 745 N.E.2d 708, 717 (Ill. App. Ct. 2001) (citation

omitted). “[C]ontracts of adhesion are generally lawful, and mere disparity of

bargaining power is not sufficient grounds to vitiate contractual obligations.” Abbot

v. Amoco Oil Co., 619 N.E.2d 789, 794-95 (Ill. App. Ct. 1993) (internal marks and

citations omitted).

Article III § 6 of the Trust Agreement is not an unenforceable contract of

adhesion. There is no evidence in the record that CRST had no bargaining power or

no right to review or accept plan amendments or modifications. Five of the ten
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Trustees of Central States are selected by participating employers. Similarly, there is

no evidence to suggest CRST did not voluntarily enter into the Participation

Agreement or the collective bargaining agreement with Local 238, which established

CRST’s intent to be bound by the Trust Agreement’s terms, rules, and regulations.

There is also no evidence in the record that Article III § 6 has a deterrent effect.

Article III § 6 does not apply to employee participants, and only allows Central States

to recover attorney fees and litigation costs from an employer when Central States’s

expulsion remains effective by judgment or settlement. On this record, Article III § 6

is not an illegal adhesion contract, and the district court did not err in awarding

Central States attorney fees and litigation costs.

IV. CONCLUSION

The district court’s judgment is affirmed.

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