UNITED STATES DISTRICT COURT

District of New Jersey

CHAM BERS OF

JOSE L. LINARES

JUDGE

M ARTIN LUTHER KING JR.

FEDERAL BUILDING & U.S. COURTHOUSE

50 WALNUT ST., ROOM 5054

P.O. Box 999

Newark, NJ 07101-0999

973-645-6042

NOT FOR PUBLICATION

LETTER OPINION

August 1, 2011

All Counsel of Record

Re: Teamsters Local 945 Pension Fund v. Omni Waste Services, Inc.

Civil Action No. 11-3077 (JLL)

Dear Counsel:

Plaintiff, Teamsters Local 945 Pension Fund, brings this action pursuant to the

Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”), 29 U.S.C. § 1381, et seq.,

seeking to collect interim withdrawal liability payments from Omni Waste Services, Inc. pending

the outcome of arbitration. Currently before the Court is Plaintiff’s motion for a preliminary

injunction seeking to compel Defendant to make interim withdrawal liability payments pursuant to

29 U.S.C. §§ 1381, 1399(c)(2). The Court has considered the submissions made in support of and

in opposition to the instant motion. No oral argument was heard. Fed. R. Civ. P. 78. Based on the

reasons that follow, Plaintiff’s motion is granted.

BACKGROUND

The following relevant facts are undisputed. Plaintiff, Teamsters Local 945 Pension Fund

(the “Local 945 Fund” or “Fund”), is a multiemployer pension plan within the meaning of Section

3(2) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1002(2). 

Defendant, Omni Waste Services, Inc., and Teamsters Local 945 (a labor organization which is not

a party to this action) are signatories to a series of collective bargaining agreements which set forth

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the terms and conditions of employment for members of Local 945 employed by Defendant Omni. 

(Connaughton Cert., Exs. 1-2). The collective bargaining agreements required, inter alia, that Omni

remit, on a monthly basis, pension contributions to the Local 945 Pension Fund on behalf of all

Local 945 bargaining unit employees performing bargaining unit work at Omni’s facilityin Paterson,

New Jersey from July 2004 through at least June 2009. (Connaughton Cert., Ex. 1 at 13-14; 25). 

It is Plaintiff’s position that although Defendant was previously obligated to contribute to the

Local 945 Pension Fund under the terms of the relevant collective bargaining agreements, as of 1

August 2009, Defendant was no longer bound by such collective bargaining agreements and thus

ceased to have an obligation to contribute to the Local 945 Pension Fund. By way of letter dated

August 30, 2010, counsel for the Local 945 Pension Fund notified Defendant of its determination

that Defendant had completely withdrawn from the Local 945 Pension Fund as a result of Omni’s

permanent cessation of obligation to remit pension contributions to the Fund. (Connaughton Cert., 

Ex. 3). In the same letter, the Fund advised Defendant of its calculation of Defendant’s withdrawal

liability ($826,441.00). (Id.). Omni has since refused to make withdrawal liability payments.

(Harvey Aff., ¶ 7). On April 4, 2011, the Local 945 Pension Fund filed its Demand for Arbitration

with the American Arbitration Association. (Compl., ¶ 17). 

It is Omni’s position that: (1) Omni has not withdrawn from the industry (but rather has

merely reached an “impasse” in its negotiations with Local 945 workers) and therefore no interim

payments, pursuant to 29 U.S.C. §§ 1381, 1399(c)(2), should be required, and (2) should the Court

determine that interim payments are required, Omni will suffer irreparable damage because it will

be forced out of business. (Juchniewicz Aff., ¶ 4); (Def. Opp’n Br. at 4-5). 

ANALYSIS

Plaintiff seeks an order compelling Omni to make interim withdrawal liability payments. In

conjunction with this application, Plaintiff seeks an award of reasonable attorney’s fees and costs,

accrued interest, and liquidated damages. 

1. Interim Withdrawal Liability

“An employer withdraws from a multiemployer pension plan when the employer either

permanently ceases to have an obligation to contribute under the plan or permanently ceases all

covered operations under the plan.” Galgay v. Beaverbrook Coal Co., 105 F.3d 137, 139 (3d Cir.

1997); 29 U.S.C. § 1383(a). “The employer is liable for its share of the plan’s unfunded vested

benefits as calculated at the time of withdrawal.” Galgay, 105 F.3d at 139; 29 U.S.C. §§ 1381, 1383,

1391. “The plan sponsor has the responsibility of determining this withdrawal liability, notifying

the employer and collecting payment.” Galgay, 105 F.3d at 139; 29 U.S.C. § 1382. 

 (Harvey Aff., ¶¶ 4, 5). 1

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Section 1399(c)(2), in turn, provides that “[w]ithdrawal liability shall be payable in

accordance with the schedule set forth by the plan sponsor under subsection (b)(1) of this section

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 the schedule.” Such payments are

to be made during arbitration; should the arbitrator determine that the plan sponsor erred in assessing

withdrawal liability, the employer is reimbursed for any overpayment. 29 U.S.C. § 1401(d). “If the

employer fails to make timely payment in accordance with such final decision, the employer shall

be treated as being delinquent in the making of a contribution required under the plan (within the

meaning of section 1145 of this title).” Id. 

In construing the foregoing sections of the MPPAA, the Third Circuit has explained that:

Congress enacted MPPAA out of concern that multiemployer pension

plans would collapse as employers withdrew if the remaining

contributors became too few in number to pay the unfunded vested

benefits. Congress foresaw that the purpose of MPPAA would be

undermined if employers could postpone paying their debts to

pension funds by engaging in protracted litigation over withdrawal

liability. Therefore, the statute directs employers to begin payments

upon notification of withdrawal liability, whether or not they choose

to dispute the determination

Galgay, 105 F.3d at 139 (internal citations omitted). Thus, “[w]hen an employer fails to make a

withdrawal liability payment within the prescribed time, an action may be brought in federal or state

court to compel payment. Id.; 29 U.S.C. § 1451(b) - (c). “The plan sponsor need show only that it

made a demand for interim payments under 29 U.S.C. § 1382 and that the payments were not made.”

Galgay, 105 F.3d at 139.

As previously stated, Omni disputes that interim payments are required for two reasons: (1)

Omni has not withdrawn from the industry (but rather has merely reached an “impasse” in its

negotiations with Local 945 workers), and (2) should the Court determine that interim payments are

required, Omni will suffer irreparable damage because it will be forced out of business. (Juchniewicz

Aff., ¶ 4); (Def. Opp’n Br. at 4-5). 

The Court will consider each of Omni’s arguments but first notes that the traditional fourprong test for a preliminary inunction is “not applicable in this context.” Galgay, 105 F.3d at 140.2

Instead, the Third Circuit has made clear that in order to compel payment of interim withdrawal

liability assessments to a multiemployer pension plan, “the plan sponsor need show only that it made

a demand for interim payments under 29 U.S.C. § 1382 and that the payments were not made.”

Galgay, 105 F.3d at 139. Here, Omni does not dispute that withdrawal liability payment was

demanded or that it has refused to comply with the demand. In any event, the Fund has met its

 For a more detailed discussion of this issue, see Galgay, 105 F.3d at 140. 2

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burden of demonstrating that: (1) withdrawal liability was assessed, (2) Omni was notified of this 3

demand, and (3) Omni has failed to make the necessary payments. Id. at 139-141. 4 5

As to Omni’s first argument, it is irrelevant whether Omni has, in fact, withdrawn from the

“industry” or simply reached an “impasse” in its negotiations with Local 945, as it maintains. It is

clear that Omni disputes the Local 945 Pension Fund’s assessment and imposition of withdrawal

liability all together. This issue will presumably be resolved in arbitration. Section 1399(c)(2) 6

makes clear, however, that “[w]ithdrawal liability shall be payable . . . 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 the schedule.” 29 U.S.C. § 1399(c)(2)

(emphasis added). To the extent the arbitrator determines that the Local 945 Pension Fund, in fact,

erred in assessing withdrawal liability, Omni will be reimbursed accordingly. See 29 U.S.C. §

1401(d). Thus, because the statute directs employers to begin interim payments upon notification

of withdrawal liability, “whether or not they choose to dispute the determination,” Omni’s first

argument is rejected without further discussion. Galgay, 105 F.3d at 139. 

Next, Omni argues that, notwithstanding any withdrawal liability obligations, the Court

should deny Plaintiff’s motion to compel interim payments because Omni will suffer irreparable

harm if it is forced to make such payments. In support of its position, Omni urges the Court to apply

an equitable exception to the statutory provisions on interim payments. In Galgay, the Third Circuit,

while recognizing the irreparable injury exception adopted by the Fifth and Seventh Circuits, made

clear that:

We have never held that there are any equitable exceptions to the

statutory provisions on interim payments and we decline to do so

now. Congress has clearly indicated its intent in this matter. The

plain language of the statute declares, “Withdrawal liability shall be

payable in accordance with the schedule set forth by the plan

 (Connaughton Cert., Ex. 3). 3

 (Connaughton Cert., Ex. 3). 4

 (Connaughton Cert., Exs. 3, 4); (Harvey Aff., ¶ 7). . 5

See, e.g., Galgay, 105 F.3d at 141 (“[D]isputes over whether an entity has ceased to be an 6

employer within the meaning of MPPAA . . . must be resolved in arbitration.”). To be clear,

however, the Court makes no finding as to whetherthe underlying dispute is one that is appropriately

resolved in arbitration. Suffice it to say that: (1) Plaintiff has indicated that it initiated arbitration

proceedings, and (2) Plaintiff’s Verified Complaint seeks only an order compelling Defendant to

make interim withdrawal liability payments pending the outcome of such arbitration. Thus, the only

issue currently before this Court is whether Omni should be compelled to make interim withdrawal

liability payments pursuant to 29 U.S.C. § 1399(c)(2). 

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sponsor....” 29 U.S.C. § 1399(c)(2) (emphasis added). No exceptions

are provided. Our jurisdiction is limited to ordering the employer to

make interim payments once the pension fund has demonstrated that

it complied with the statutory requirements for calculating liability

and notifying the employer. 29 U.S.C. § 1382.

Galgay, 105 F.3d at 140. In light of the foregoing, and absent a contrary directive from the Court

of Appeals for the Third Circuit, the Court declines to apply an equitable exception to the statutory

provisions on interim payments. 

7

Suffice it to say that the Local 945 Pension Fund has demonstrated that it complied with the

statutory requirements – assessing Omni’s withdrawal liability and notifying Omni of such an

assessment – and that Omni has failed to make the interim payments. “That is all the statute

requires.” Galgay, 105 F.3d at 141. Plaintiff’s motion for a preliminary injunction to compel

Omni’s interim withdrawal liability payments is therefore granted.8

Even assuming, arguendo, that an irreparable injury exception were applicable, Omni has

7

failed to convince the Court that Plaintiff’s claim is frivolous or non-colorable. Nor has Omni

submitted any specific evidence to support its claim of irreparable harm. At most, Omni has

demonstrated that it is a financially troubled company. Such a showing, without more, is insufficient

to warrant equitable relieffrom interim payment liability. See Galgay, 105 F.3d at 141 (“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 defer

payment because theypose that risk.”); Trustees of Amalgamated Ins. Fund v. Crown Clothing, Inc.,

27 F. Supp.2d 507, 515 (D.N.J. 1998) (“[E]ven if the Court found that Crown would suffer such

harm were it forced to make interim payments, it could not relieveCrown from its obligation” where

Crown had otherwise failed to provide evidence that the Trustees’ claim was non-colorable). 

See, e.g., Einhorn v. Kaleck Bros., Inc., 713 F. Supp.2d 417, 424- 425 (D.N.J. 2010) 8

(granting summary judgment in favor of the pension fund, ordering payment of interim withdrawal

liability payments, and noting that “Defendant offers no legal authority which would abrogate the

right of the Fund to make a determination as to whether an employer permanently withdraws or

which would allow this Court to determine an issue which must be resolved in arbitration.”). 

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2. Attorney’s Fees and Costs; Accrued Interest; and Liquidated Damages 

In conjunction with its motion to compel interim payments, Plaintiff seeks an award of

reasonable attorney’s fees and costs, accrued interest and liquidated damages.

Section 1132(g)(2) provides that:

In any action under this subchapter by a fiduciary for or on behalf of

a plan to enforce section 1145 of this title in which a judgment in

favor of the plan is awarded, the court shall award the plan – 

(A) the unpaid contributions, 

(B) interest on the unpaid contributions, 

(C) an amount equal to the greater of – 

(i) interest on the unpaid contributions, or 

(ii) liquidated damages provided for under the plan in an

amount not in excess of 20 percent (or such higher

percentage as may be permitted under Federal or State

law) of the amount determined by the court under

subparagraph (A), 

(D) reasonable attorney's fees and costs of the action, to be paid

by the defendant, and 

(E) such other legal or equitable relief as the court deems

appropriate. 

29 U.S.C. § 1132(g)(2) (emphasis added). Sections 8.6-8.9 of the Withdrawal Liability Rules

adopted by the Board of Trustees of the Local 945 Pension Fund provide that if an employer fails

to make withdrawal liability payments when due, the employer must pay the delinquent sum plus

interest, plus the greater of interest on the delinquent sum or liquidated damages of 20 percent (or

such higher percentage as the law allows) of the delinquent sum. (Connaughton Cert., ¶ 7; Ex. 5). 

In addition, the Resolution Regarding Collection of Delinquent Contributions from

Participating/Contributing Employers provides for the assessment of accrued interest on delinquent

benefit contributions at a rate of 15% per year. (Connaughton Cert., ¶ 8; Ex. 6 at 2). 

Omni does not dispute the applicability of Section 1132(g)(2) or that, in the event the Court

grants Plaintiff’s motion to compel interim withdrawal liability payments pursuant to 29 U.S.C. §§

1381, 1399(c)(2), Plaintiff would be entitled to reasonable attorney’s fees and costs, accrued interest

and liquidated damages, as set forth above. Nor does Omni dispute the authenticity or applicability

of the documents submitted by Plaintiff – namely, the Withdrawal Liability Rules adopted by the

Board ofTrustees of the Local 945 Pension Fund and Resolution RegardingCollection of Delinquent

Contributions from Participating/Contributing Employers, attached as Exhibits 5 and 6 to the

Connaughton Certification. 

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In light of the foregoing, and pursuant to 29 U.S.C. 1132(g)(2), the Court grants Plaintiff’s

request for reasonable attorney’s fees and costs, accrued interest and liquidated damages. Plaintiff

is hereby directed to submit a detailed certification in support of anyspecific amounts sought, as well

as a proposed order, within thirty (30) days. 

CONCLUSION

Based on the reasons set forth above, Plaintiff’s motion for a preliminary injunction seeking

to compel Defendant to make interim withdrawal liability payments pursuant to 29 U.S.C. §§ 1381,

1399(c)(2) is granted, as is Plaintiff’s request for reasonable attorney’s fees and costs, accrued

interest and liquidated damages pursuant to 29 U.S.C. 1132(g)(2). Plaintiff shall submit a detailed

certification and proposed order in support of any specific amounts sought within thirty (30) days.

 An appropriate Order accompanies this Letter Opinion.

/s/ Jose L. Linares 

JOSE L. LINARES,

UNITED STATES DISTRICT JUDGE

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