IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

EUSA-ALLIED ACQUISITION CORP.,

Plaintiff,

v.

TEAMSTERS PENSION TRUST FUND

OF PHILADELPHIA & VICINITY,

and LOCAL UNION 312

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS,

Defendants.

Civil Action 

No. 11-3181 (JBS-AMD)

OPINION

APPEARANCES:

James P. Anelli, Esq.

Joseph P. Paranac, Esq.

Robert M. Pettigrew, Esq.

LECLAIRRYAN

One Riverfront Boulevard

16th Floor

Newark, NJ 07102

Counsel for Plaintiff

Jo Bennett, Esq.

Frank C. Sabatino, Esq.

STEPHENS & LEE

1818 Market Street

29th Floor

Philadelphia, PA 19103

Counsel for Defendant Teamsters Pension Trust Fund of

Philadelphia & Vicinity

Susan A. Murray, Esq.

FREEDMAN & LORRY, PC

1601 Market Street

2nd Floor

Philadelphia, PA 19103

Counsel for Defendant Local Union 312, International

Brotherhood of Teamsters

Case 1:11-cv-03181-JBS-AMD Document 22 Filed 06/16/11 Page 1 of 18 PageID: 245
SIMANDLE, District Judge:

I. INTRODUCTION

This matter comes before the Court on the motion of

Plaintiff EUSA-Allied Acquisition Corp. for a temporary

restraining order entering a stay of any interim payments or

penalties being sought by Defendant Teamsters Pension Trust Fund

of Philadelphia and Vicinity under the Multi-employer Pension

Plan Amendments Act (MPPAA) of 29 U.S.C. §§ 1381-1453. The Court

received briefing in support of the motion from Plaintiff EUSAAllied [Docket Item 1], and in opposition to the motion from

Defendant Teamsters Pension Trust Fund [Docket Item 8] as well as

from Defendant Local Union 312, International Brotherhood of

Teamsters [Docket Item 13]. In addition, Plaintiff submitted the

Declaration of Edward Burke, the Chief Financial Officer of EUSAAllied’s parent company, North American Propane, Inc., in support

of Plaintiff’s contention of irreparable injury. [Docket Item

9.] The Court held a hearing on the motion on Tuesday, June 7,

2011, at which all parties appeared through counsel. The Court

reserved decision on the motion at that time. On June 15, 2011,

the Court convened a telephone conference and announced its

decision to deny the motion on the record, with all parties in

attendance. This Opinion sets out the reasoning of that

decision.

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II. FACTUAL BACKGROUND1

Plaintiff is a subsidiary corporation of North American

Propane (“NAP”). In February of 2006, Plaintiff negotiated an

acquisition of Allied Propane. As part of its acquisition of

Allied Propane, EUSA-Allied agreed to assume Allied’s obligations

under its collective bargaining agreement (CBA) with Defendant

Local Union 312. One of those obligations was to contribute to

Defendant Teamsters Pension Trust Fund. Plaintiff alleges that

one of the key components of this negotiation was the duration

that Plaintiff would be obligated to participate in the Plan and

at what point it would face withdrawal liability under the MPPAA. 

Consequently, as part of the ultimate acquisition, the parties

(EUSA-Allied, Allied Propane, Teamsters Pension Trust Fund, and

the Local Union 312) drew up an agreement that stated that,

pursuant to Article IX, Section G of the Pension Plan, EUSAAllied would have a “free look” period under the Plan. 

Specifically, EUSA-Allied would face no withdrawal liability to

the Fund under the MPPAA so long as it contributed to the Fund

“for no more than five consecutive plan years.”

The referenced section of the Plan, Article IX, Section G,

governs the “free look” period for all employer contributors. It

states that “Pursuant to ERISA Section 4210, 29 U.S.C. Section

1390, an employer who withdraws from the Plan in a complete or

 All facts, unless stated otherwise, are taken from the 1

Plaintiff’s Verified Complaint.

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partial withdrawal is not liable to the Plan if the employer . .

. had an obligation to contribute to the Plan for no more than

five consecutive plan years preceding the date on which the

employer withdraws.” In the Definitions section of the Plan, it

states that “[t]he Plan Year shall be the calendar year.” (Plan,

Art. I, Sec. A.)

The referenced section of the statute, 29 U.S.C. § 1390, is

a provision of the MPPAA, which governs permissible “free look”

periods under applicable plans (such as Defendant). That section

states that “An employer who withdraws from a plan in complete or

partial withdrawal is not liable to the plan if the employer . .

. (2) had an obligation to contribute to the plan for no more

than the lesser of (A) 6 consecutive plan years preceding the

date on which the employer withdraws, or; (B) the number of years

required for vesting under the plan.”

In November of 2010, Plaintiff notified Defendants of their

intention to withdraw from the plan on December 31, 2010, and

referenced the “free look” agreement as a basis for their claim

that the withdrawal should be without liability to the plan. 

(Cleves Decl. Ex. D.) On December 20, 2010, Defendant Trust Fund

replied to Plaintiff’s stated intention to withdraw that its

interpretation of the “Free Look Agreement,” read in conjunction

with Article IX Section G of the Plan and the relevant section of

the MPPAA, established that the free look period had expired

earlier in 2010 because at least one of the Plaintiff’s

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participating employees had fully vested in the plan already and

that, therefore, under § 1390(a)(2)(B), the free look period had

expired. (Cleves Decl. Ex. E.) Therefore, Defendant explained

that if Plaintiff withdrew as announced, it may face withdrawal

liability under the MPPAA. On December 31, Plaintiff withdrew

from the Plan as announced.

On April 19, 2011, Defendant sent Plaintiff a withdrawal

liability letter, stating that it had determined that the

Plaintiff had withdrawn from the plan after the expiration of the

free look period, and that it therefore had incurred withdrawal

liability under the MPPAA. It calculated a full withdrawal

liability under the MPPAA at approximately $680,000, and

established a quarterly interim payment structure, to begin with

a payment of $109,000 on June 18, 2011. (Cleves Decl. Ex. B.)

On June 2, 2011, Plaintiff filed this action with its motion

for temporary relief from this repayment schedule. The

Complaint, among other relief, seeks (1) a declaratory judgment

that, under the “Free Look” agreement, the Plaintiff had no

withdrawal liability; and (2) relief from MPPAA withdrawal

liability on the grounds that Defendants fraudulently induced

Plaintiff into acquiring Allied Propane in February of 2006 with

the promise that no withdrawal liability would accrue until after

the expiration of the fifth plan year, but that Defendants “had

no intention of honoring their express representations of fact”

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on this point. Plaintiff also seeks contract and other state-law

damages.

III. DISCUSSION

A. Standard

When evaluating a motion for a temporary restraining order,

the Court must consider four factors: “(1) the likelihood of

success on the merits after a full hearing; (2) whether the

movant will be irreparably injured without the restraint; (3)

whether the party to be enjoined will be irreparably injured if

the preliminary relief is granted; and (4) whether the public

interest will be served by the preliminary relief.” Value Group,

Inc. v. Mendham Lake Estates, L.P., 800 F. Supp. 1228, 1231

(D.N.J. 1992) (citing Opticians Ass'n of America v. Independent

Opticians of America, 920 F.2d 187, 191-92 (3d Cir.1990)). On

the second prong, to warrant granting a TRO, irreparable harm

alone is not enough. A plaintiff has the burden of proving a

"clear showing of immediate irreparable injury." Continental

Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 359 (3d Cir.

1980). The "requisite feared injury or harm must be

irreparable--not merely serious or substantial," and it "must be

of a peculiar nature, so that compensation in money cannot atone

for it." Glasco v. Hills, 558 F.2d 179, 181 (3d Cir. 1977). A

plaintiff must establish that all four factors favor preliminary

relief. Opticians Ass'n of America, 920 F.2d at 192.

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B. Likelihood of Success on the Merits

1. Plaintiff’s Fraudulent Inducement Claim

Plaintiff seeks to avoid its alleged withdrawal liability

and set aside the arbitration requirements of the Plan and MPPAA

under a theory of fraudulent inducement, claiming that it only

agreed to enter into the free look agreement and assume Allied’s

obligations under the CBA in reliance on Defendants’

representations that it would be permitted to withdraw from the

Plan within five calendar years from the date it acquired Allied

Propane in February of 2006.

The Third Circuit has recognized the existence of a defense

to liability under the MPPAA by a plaintiff/employer that it was

fraudulently induced into contributing to a multi-employer

pension plan, Carl Colteryahn Dairy, Inc. v. Western Pennsylvania

Teamsters & Employers Pension Fund, 847 F.2d 113, 115 (3d Cir.

1988). 

Assuming the truth of Colteryahn's allegations, the

substantial withdrawal liability assessed upon

Colteryahn in this case stemmed in large part (if

not entirely) from fraudulent misrepresentations by

the Fund, for which the federal common law of

pension plans would provide a remedy. Indeed, we

would find it quite curious if Congress had given

multi-employer plans the immense power that the

Fund has exercised in this case--viz., the power to

assess upon a withdrawing employer a substantial

penalty while providing the employer with few

defenses--yet did not intend to place some check on

the conduct and practices of such plans. Moreover,

we doubt that Congress intended that innocent

employers, penalized by the fraudulent exercise of

such powers, would be without remedy. Finally,

given the predominant federal interest in the

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conduct of pension plans' affairs, any check on

such power must be available in federal court.

Id. at 121-22.

Thus, were Plaintiff to prevail on its fraudulent inducement

claim, it would be entitled to relief from withdrawal liability. 

However, the Court concludes that Plaintiff has not demonstrated

a probability of success on the merits of this claim.

To prevail on its claim of fraudulent inducement under the

“federal common law of pension plans”, EUSA-Allied must prove 

(1) a misrepresentation, (2) a fraudulent utterance

thereof, (3) an intention by the maker that the

recipient will thereby be induced to act, (4)

justifiable reliance by the recipient upon the

misrepresentation, and (5) damage to the recipient

as the proximate result.

Carl Colteryahn Dairy, Inc. v. Western Pennsylvania Teamsters and

Employers Pension Fund, 1993 WL 120457 at * 2 (W.D. Pa. Feb. 9,

1993) (considering merits of plaintiff’s fraudulent inducement

claim after remand from Third Circuit) (quoting Scaife Co. v.

Rockwell-Standard Corp., 446 Pa. 280, 284 (1971)).

The Court finds that Plaintiff has not shown a likelihood

that it will be able to prove many of these elements. Plaintiff

alleges that it interpreted the “free look” agreement, and the

language of the Plan itself in Art. IX, Section G, to state

unambiguously that Plaintiff was free to withdraw from the Fund

without liability up to five calendar years after EUSA-Allied

acquired Allied Propane and assumed its obligations under the

CBA. Defendant Fund contends that the Plan and “free look”

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agreement never state that free look period extends to five

“full” plan years, and that, read in conjunction with the

referenced statute, § 1390(a)(2)(B) limits the free look period

in the agreement and Plan to “the number of years required for

vesting under the plan.” Thus, because a participating employee

of Plaintiff could have vested in the plan after four full plan

years and 750 hours of service in the fifth year, the free look

period under the Plan expired after four plan years and 750 hours

of covered work. 

Plaintiff alleges that it justifiably interpreted the

language of the “free look” agreement to mean that it would not

be assessed withdrawal liability if it withdrew from the Plan on

December 31, 2010. It further asserts that Defendants

fraudulently intended Plaintiff to so interpret the agreement and

to rely on that fact. Plaintiff also alleges that, had it known

that the free look period extended only to four full plan years

plus 750 hours in the fifth year, it would not have acquired

Allied Propane and assumed its obligations under the CBA. 

However, the Court notes that, based upon the

representations of counsel for both Defendants in this case,

Plaintiff itself drafted the language of the free look agreement. 

Additionally, the free look agreement explicitly references the

Plan, which explicitly states that it is to be interpreted

“pursuant to” the statute. “When a contract expressly

incorporates a statutory enactment by reference, that enactment

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becomes part of a contract for the indicated purposes just as

though the words of that enactment were set out in full in the

contract.” Williston on Contracts (4th ed.) § 30:19, citing

United States v. Insurance Co. of North America, 131 F.3d 1037

(D.C. Cir. 1997). See also, Williams v. Stone, 109 F.3d 890, 896

(3d Cir. 1997) (holding statutory provision referenced in

contract to be “implicitly incorporated” into the contract). 

Therefore, Plaintiff was on constructive, if not actual, notice

that the statutory limitation on free look periods might apply

and could influence the interpretation of the “free look”

agreement. 

The Court finds that Plaintiff is not likely to be able to

prove that the language of the free look agreement was a

misrepresentation, that Defendants were the “makers” of that

misrepresentation, that Defendants intended to induce Plaintiff

to act by such a “misrepresentation”, or that any reliance on

such a “misrepresentation” would have been justified. Further,

the Court finds no evidence to support the unlikely proposition

that, had Plaintiff known in February of 2006 that its free look

period to withdraw from the Plan extended to only four years plus

750 hours rather than five full calendar years, it would have

chosen to forgo the acquisition Allied. Consequently, Plaintiff

has not demonstrated a probability of success on its fraudulent

inducement claim. At this point, it does not appear likely that

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Plaintiff can set aside the Plan, with its mandatory arbitration

provision, on grounds of fraudulent inducement.

2. Statutory Limitation on Staying Relief

Another bar to Plaintiff’s relief on the merits is the

MPPAA’s “pay first dispute later” provisions. Defendants argue

that the Court is without authority to enter any injunction

staying interim payments in this matter because such payments are

mandatory under MPPAA, citing to the statute's requirement that

interim withdrawal liability payments be made during the pendency

of any challenge to the assessment of liability. Section

1399(c)(2) states that "withdrawal liability shall be payable in

accordance with the schedule set forth by the plan sponsor . . .

notwithstanding any request for review or appeal of

determinations of the amount of such liability or of the

schedule." (emphasis added.) Similarly, § 1401(d) states that

interim payments must be made during the employer's challenge, if

any, in arbitration, and, should the employer's challenge to the

liability be vindicated by the employer, the employer will be

reimbursed for any overpayment.

The Court agrees with Defendants. The Court finds that the

statutory language of MPPAA and controlling precedent in the

Third Circuit is very clear that an employer such as Plaintiff

must comply with the interim withdrawal liability payments during

the pendency of a challenge to the assessment of withdrawal

liability, regardless of equitable considerations. The Third

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Circuit has held, unambiguously, that a fund that has assessed

withdrawal liability "is entitled to collect interim payments

even when an employer launches a facial constitutional challenge

to the statute. Additionally, payments must be made whether the

underlying dispute is resolved through arbitration or by a

federal court." Board of Trustees of Trucking Employees of North

Jersey Welfare Fund, Inc. v. Centra, 983 F.2d 495, 507 (3d Cir.

1992).

The Third Circuit recognizes no equitable exceptions to this

mandatory rule. In its most recent decision considering

equitable exceptions to the “pay now dispute later” structure of

the MPPAA, the court noted 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." Galgay v.

Beaverbrook Coal Company, 105 F.3d 137, 140 (3d Cir. 1997)

(citing Centra, 983 F.2d at 507-08).

Plaintiff urges the Court to apply a narrow equitable

exception recognized in the Fifth and Seventh Circuits that a

district court can grant a stay of interim payments to an

employer upon the combined showing of both irreparable injury and

that the Fund's claim is not colorable or is frivolous. See

Trustees of the Plumbers and Pipefitters National Pension Fund v.

Mar-Len, Inc., 30 F.3d 621 (5th Cir. 1994), Robbins v. McNicolas

Transp. Co., 819 F.2d 682 (7th Cir. 1987). Plaintiff argues that

the reasoning of the Third Circuit's opinion in Galgay v.

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Beaverbrook was compatible with such an exception. The Court

concludes that, while such an exception is not explicitly

prohibited by Beaverbrook, it is certainly not approved either. 

The Court expressed limited agreement with the Fifth and Seventh

Circuit courts on the issue that irreparable harm alone is

“insufficient to warrant equitable relief from interim payment

liability.” Id. at 141. However, the Beaverbrook majority

opinion concluded that, because the employer had not raised the

argument that the fund’s claim was frivolous, it would not

consider the issue. Thus, the Circuit is silent on whether this

Court could apply an equitable exception in a case of irreparable

injury and frivolous liability, and the Court finds no district

court opinion in this circuit following the direction of the

Fifth and Seventh circuits on this issue. The Court also notes

that at least one other circuit, the First Circuit, has erected

even more stringent requirements around staying interim

withdrawal liability payments. See Giroux Bros. Transp., Inc. v.

New England Teamsters & Trucking Indus. Pension Fund, 73 F.3d 1,

5 (1st Cir. 1996) (requiring employer show threat of imminent

liquidation, rather than lower standard of “irreparable injury”

from Seventh and Fifth Circuits).

Secondly, the Court additionally finds that, even under the

Fifth and Seventh Circuit doctrines, the Court would be compelled

to deny Plaintiff’s motion. Under this line of cases, the courts

have permitted a district court to stay interim withdrawal

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liability payments on the showing of both irreparable injury to

the employer and that the fund’s underlying withdrawal liability

claim is frivolous. See Robbins v. McNicolas Transp. Co., 819

F.2d 682 (7th Cir. 1987). However, even in the Fifth and Seventh

Circuits, this exception has been applied rarely and with

caution. The Seventh Circuit has clarified that this exception

“is at most a recognition that if the fund's claim is frivolous –

if the arbitrator is almost certain to rule for the employer –

then the plan is engaged in a ploy that a court may defeat. . . . 

Having assured itself that the plan's claim is legitimate,

however, the court should order the making of interim payments

and leave the rest to the arbitrator.” Trustees of the Chicago

Truck Drivers, Helpers and Warehouse Workers Union (Independent)

Pension Fund v. Central Transport, Inc., 935 F.2d 114, 119 (7th

Cir. 1991).

Plaintiff’s attempt to fit within this exception is

clarified by noting that, even in the Fifth and Seventh Circuits,

the courts are skeptical of employers’ claims that the fund’s

argument is frivolous. In the Fifth Circuit case of Mar-Len,

supra, the court determined that the fund’s assessment of

withdrawal liability was not sufficiently frivolous to qualify

for the exception. 30 F.3d at 626. The same result obtained in

the Seventh Circuit case of Trustees of the Chicago Truck

Drivers, Helpers and Warehouse Workers Union (Independent)

Pension Fund v. Rentar Industries, Inc., 951 F.2d 152, 155 (7th

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Cir. 1991). The only examples of sufficiently “frivolous” claims

under these circuits found by the Court are cases where the fund

seeks to extract withdrawal liability in explicit conflict with

the provisions of MPPAA itself. See Robbins v. McNicolas Transp.

Co., 819 F.2d 682 (7th Cir. 1987) (finding fund’s assessment of

withdrawal liability against employer that ceased making

contributions during labor dispute, despite explicit “labor

dispute” exception to liability under MPPAA, 29 U.S.C. §

1398(2)).

In the instant case, Plaintiff argues that Defendant

Teamsters Pension Trust Fund’s claim for withdrawal liability is

not colorable or is frivolous. As explained above in the

fraudulent inducement section, the Court is not convinced that

the Fund’s claim for withdrawal liability, premised as it is on

the statutory language, is frivolous.

To determine whether withdrawal liability was properly

assessed in this case requires an inquiry into the extent to

which the terms of the free look provisions of the statute

control the interpretation of the Plan and the parties’ “free

look agreement.” The Court recognizes that this determination is

a difficult question, but, for that very reason, denies that the

claim for withdrawal liability is “frivolous” as required to

enter a stay of interim withdrawal payments. It is not frivolous

to argue that when a contractual provision incorporates the

restrictions of a statute by reference, the terms of that statute

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would limit the protections of the contract, even if it is later

determined that, in this case, EUSA’s interpretation of the

agreement and statute are ultimately vindicated. See Williams v.

Stone, 109 F.3d 890, 896 (3d Cir. 1997). It is certainly not

frivolous to the degree found in McNicolas, where assessment of

withdrawal liability plainly conflicted with an exception to

liability in the MPPAA statute.

Consequently, the Court concludes that, even if it were to

apply the Fifth and Seventh Circuits’ exception to the general

“pay now dispute later” rule under the MPPAA, the exception would

not be justified in this case.

C. Immediate and Irreparable Injury

Alternatively, the Court also concludes that Plaintiff is

not entitled to the TRO that it seeks at this time because, while

the Court assumes without deciding that a finding of irreparable

injury is satisfied by the financial data attached to the

Declaration of Edward Burke, Plaintiff has not demonstrated that

this injury is immediate as required. Upon review of the facts

of the case and the MPPAA repayment schedule, the Court finds

that the threat of injury is not sufficiently immediate to

warrant the emergency injunctive relief being sought.

Plaintiff alleges that the injury is immediate because the

first interim withdrawal liability payment is due on June 18,

2011, according to Defendant Teamsters Pension Trust Fund’s April

19, 2011 demand letter, attached as Exhibit B to Plaintiff’s

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verified Complaint. Plaintiff alleges that if the first interim

payment is not made by June 18, 2011, the entire calculated

withdrawal liability of $679,325.13 will become due immediately.

However, as counsel for Defendant Trust Fund indicated in

the hearing on this matter, the default provisions of MPPAA

actually provide for a longer period. Under 29 U.S.C. §

1399(c)(5)(A), Plaintiff’s initial payment, if not made on the

demanded date of June 18, 2011, will only enter default 60 days

after Plaintiff receives written notification from Defendant

Trust Fund of Plaintiff’s failure to make payment on June 18,

2011. Thus, under this schedule, even if no payment is made on

June 18, Plaintiff will not be in default under MPPAA until, at

the earliest, August 17, 2011. Meanwhile, the preliminary

injunction hearing will be convened before August 17 when the

question of immediacy can be revisited.2

The Court finds this timeline does not meet the exacting

demands of “immediate” harm to warrant the temporary restraints

being sought pending a preliminary injunction hearing, as

required under Fed. R. Civ. P. 65. Consequently, the Court will

also deny Plaintiff’s TRO on this alternative basis.

 By separate Order filed June 16, 2011, the Court, after 2

discussion with all counsel, has provided for expedited

discovery, a supplemental briefing schedule, and a hearing date

of August 3, 2011 upon the motion for preliminary injunction.

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VI. CONCLUSION

Therefore, because the Court finds that Plaintiff has not

demonstrated a probable success on the merits of its fraudulent

inducement claim, has not demonstrated that the Court has the

discretion to enter the equitable relief it seeks, and has not

demonstrated that its potentially irreparable injury is

sufficiently immediate, the Court will deny its motion for a

temporary restraining order. The accompanying Order shall be

entered.

June 16, 2011 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

U.S. District Judge

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