Spring break continues with another slow week ERISA-wise in the courts. But go on an Easter egg hunt for one case that decides that speeding is not a crime, another that allows a claim based on the Takings Clause of the Fifth Amendment to go forward against the government for statutory amendments to ERISA, and other interesting decisions below.

Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.

Arbitration 

Third Circuit

J. Supor & Son Trucking & Rigging Co. v. Trucking Emps. of N. Jersey Welfare Fund, No. 20-3286, __ F. 4th __, 2022 WL 1010057 (3rd Cir. Apr. 5, 2022) (Before Circuit Judges Chagares, Bibas, and Fuentes). Contractor J. Supor & Son Trucking & Rigging Company (“J Supor”) sued the multi-employer Trucking Employees of North Jersey Welfare Fund contesting the withdrawal penalty the fund demanded after J. Supor stopped working with the union truckers and pulled out of the Fund. In the district court, summary judgment was granted in favor of the Fund. The district court concluded that J. Supor was an employer and that under the Multiemployer Pension Plan Amendments Act of 1980, J. Supor was required to arbitrate such disputes. J. Supor appealed, asking the Third Circuit to define “employer” differently than the district court. The Third Circuit, not wanting to create a split among the circuits, declined to redefine employer. “Though that (definition) does not follow the dictionary definition of ‘employer,’ it draws from another part of the statute and preserves the statutory plan. Plus, it aligns with three decades of unanimous case law from our sister circuits.” Therefore, the Third Circuit affirmed the lower court’s order and held that the parties must arbitrate their dispute. 

Berkelhammer v. ADP Totalsource Grp., Inc., No. 20-5696, 2022 WL 1059474 (D.N.J. Mar. 31, 2022) (Judge Esther Salas). In this putative class action, the court granted defendant NFP Retirement Inc.’s motion to compel meditation or if mediation fails, arbitration of plaintiff’s claims against it and to dismiss the claims against it. Plaintiffs moved for entry of judgment as to NFP under Rule 54(b) or for certification for interlocutory appeal. The court found no reason for delay and entered final judgment as to NFP. The court stated that the arbitration issue is purely a legal one and therefore is not relevant to the unadjudicated claims. Nor would the Third Circuit have to consider “the arbitration issue a second time.” Furthermore, the court stated that the possibility of appellate review would be mooted by future developments in the case. Finally, the court expressed its interest in avoiding delay, concluding instead that “an immediate decision on the arbitration issue … can avoid the entire case later starting over against NFP in the event the Third Circuit reverses.” Therefore, the court found no reason to delay and certified final judgment. However, the court declined to decide the interlocutory appeal issue. Accordingly, the court entered final judgment pursuant to Rule 54(b), but did not certify the arbitration decision for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). 

Breach of Fiduciary Duty

Second Circuit

Clare v. GreatBanc Tr. Co., No. 21-cv-3393 (ALC), 2022 WL 992630 (S.D.N.Y. Mar. 31, 2022) (Judge Andrew L. Carter, Jr.). Plaintiff Amanda Clare is a participant in the EYP Holdings, Inc. Employee Stock Ownership Plan (“ESOP”). Ms. Clare brought this ERISA prohibited transaction and breach of fiduciary duty suit alleging defendants paid more than fair market value of the EYP stock. The Long Point Capital Partners L.P. defendants moved to dismiss. Ms. Clare’s complaint alleged that the Long Point defendants were parties in interest to the prohibited transaction and therefore liable under ERISA. The court granted the motion to dismiss holding that the complaint’s allegations were bare and conclusory regarding both the actual knowledge the Long Point defendants had regarding the circumstances of the ESOP transaction and the unlawfulness of the underlying transaction. 

Third Circuit

Mator v. WESCO Distribution, Inc., No. 2:21-CV-00403-MJH, 2022 WL 1046439 (W.D. Pa. Apr. 7, 2022) (Judge Marilyn J. Horan). Plan participants brought claims for breach of fiduciary duty of prudence and failure to monitor co-fiduciaries against defendants Wesco Distribution, Inc., the Administrative and Investment Committee for Wesco Distribution, Inc. Retirement Savings Plan, and Doe defendants challenging their processes with regards to evaluating fees and reducing costs assessed to the plan. Specifically, plaintiffs asserted that both direct and indirect fees charged to participants were nearly four times higher than those charged by other plan administrators, and that the plan imprudently offered retail rather than institutional share classes. In support of their claims, plaintiffs pointed out that when the plan eventually switched administrators from Wells Fargo to Fidelity Investments in 2020, the per participant fee went from between $153 and $185 per participant down to only $53 dollars. Defendants moved to dismiss for failure to state a claim. The court granted the motion, without prejudice allowing plaintiffs leave to amend their complaint. The court agreed with defendants that plaintiffs’ complaint suffered from pleading deficiencies. Even if the fee comparisons within the complaint could be construed as “apples to apples” the court expressed that “one could be Honeycrisp and the other a Granny Smith.” According to the court, the complaint did not pass from “possible to plausible,” and did not sufficiently put defendants “proper notice… to allow for assessment of the comparisons alleged.” 

Class Actions

Third Circuit

Luciano v. Teachers Ins. & Annuity Ass’n of Am., No. 15-6726 (ZNQ) (DEA), 2022 WL 1044969 (D.N.J. Apr. 7, 2022) (Judge Zahid N. Quraishi). Defendants Teachers Insurance and Annuity Association of America – College Retirement Equities Fund (“TIAA-CREF”) are one of the country’s largest ERISA fiduciaries providing retirement plan design, administration, and consultation services. Plaintiff Lorraine Luciano filed this putative class action after TIAA-CREF determined that she was entitled to only 50% of her deceased husband’s pension benefits under 401(a) and 403(b) Plans, which she asserted was in violation of ERISA as amended by the Retirement Equity Act of 1984. Defendants filed a motion to dismiss, citing the Plans’ mandatory arbitration provision. The court granted the motion with regards to the 401(a) Plan and the arbitrator held that the terms of that Plan required 100% payment of the account balance to Ms. Luciano. Ms. Luciano then moved to confirm the arbitration award and reopen the case, which were granted. Defendants now move to strike class allegations, challenging the remaining putative classes. The court denied the motion. Defendants’ argument that the proposed classes contain facial defects because they include plan participants, who while still alive have suffered no harm, was rejected by the court, which expressed that ERISA permits such forward looking relief. Defendants’ arguments concerning individual issues of members of the proposed classes were no more persuasive to the court. These issues constituted a predominance challenge, and a predominance inquiry would be premature at this stage. According to the court, Ms. Luciano seeks “to stop Defendants’ uniform practice,” and after discovery may be able to meet the requirements for class certification, making dismissal inappropriate at this juncture. 

Ninth Circuit

Gamino v. KPC Healthcare Holdings, Inc., No. 5:20-cv-01126-SB-SHK, 2022 WL 1043666 (C.D. Cal. Apr. 5, 2022) (Judge Stanley Blumenfeld, Jr.). This class action pertains to KPC Healthcare Holdings, Inc.’s employee stock ownership plan (“ESOP”) and the alleged violations surrounding its debt-leveraged purchase of KPC Healthcare Holdings Inc.’s stock. The court previously granted plaintiff Danielle Gamino’s motion for class certification against defendants Alerus Financial, N.A. and KPC Healthcare Holdings, but denied MS. Gamino’s request to amend her complaint to add SPCP Group, LLC as a defendant in the case. However, after Ms. Gamino sued SPCP, the two actions were consolidated, and the court subsequently denied defendant SPCP’s motion to dismiss. Here, Ms. Gamino moves for class certification against SPCP. SPCP opposed the motion and challenged the adequacy requirement of certification pursuant to Rule23(a). SPCP argued that Ms. Gamino is an inadequate class representation because she lacks the required knowledge and understanding of the claims asserted. The court very much disagreed, concluding that not only is the threshold of knowledge for a complex ERISA ESOP case like this one low, but Ms. Gamino more than understands the essence of the complaint against SPCP “that the implied price of KPC stock in the 2015 ESOP Transaction should have been a ‘red flag’ to SPCP, especially because they ‘said they did their due diligence,’ but SPCP participated in – and benefited from – the transaction anyway.” Accordingly, Ms. Gamino evinced adequate knowledge of her case and was found to be an adequate representative. The motion for class certification against SPCP was thus granted. 

Disability Benefit Claims

Seventh Circuit

Sieg v. Hartford Life & Accident Ins. Co., No. 20-C-1420, 2022 WL 1004199 (E.D. Wis. Apr. 4, 2022) (Judge William C. Griesbach). Plaintiff Valerie Sieg sued Hartford Life and Accident Insurance Company after the insurer terminated her long-term disability benefits. Ms. Sieg moved for judgment on the administrative record. Parties agreed that the plan granted Hartford discretionary authority and the arbitrary and capricious review standard applies. Under the deferential review standard, the court was satisfied that Hartford’s decision was supported by evidence within the record. The court also held that reviewing physicians addressed the opinions of the treating physicians and sufficiently explained why they disagreed with those opinions. The same was true with regards to Hartford’s differing opinion of the Social Security Administration. Hartford’s explanation that receipt of benefits under the plan is determined with different criteria than that used by the Social Security Administration was satisfactory to the court. Finally, the court was not persuaded that any conflict of interest adversely affected the outcome or influenced the insurer. For these reasons, the court denied Ms. Sieg’s motion for judgment and dismissed the case. 

Ninth Circuit

Adams-Runion v. Unum Life Ins. Co. of Am., No. 2:20-cv-01042-JAM-DB, 2022 WL 1050097 (E.D. Cal. Apr. 7, 2022) (Judge John A. Mendez). Plaintiff Lisa Adams-Runion sued Unum Life Insurance Company of America after her long-term disability claim related to her chronic heart problems was denied. Parties filed cross motions for judgment and agreed that de novo review applies. The court, having examined the administrative record, articulated that Ms. Adams-Runion’s medical history did not show by a preponderance of evidence that she was disabled and unable to perform the material duties of her occupation. “Plaintiff’s cardiology exams prior to her work stoppage were normal, Plaintiff had been able to successfully return to work after both her 2015 heart surgery and her May 8, 2018 hospital visit … and there was no documented acceleration of her treatment on her last day of work.” Accordingly, the court granted judgment in favor of Unum and against MS. Adams-Runion. 

Eleventh Circuit

Boatwright v. Aetna Life Ins. Co., No. 8:20-cv-2165-TPB-AAS, 2022 WL 1015785 (M.D. Fla. Apr. 5, 2022) (Judge Tom Barber). Plaintiff Tracy Boatwright sued Aetna Life Insurance Company after her long-term disability benefits were terminated. Parties filed cross-motions for summary judgment. The court concluded that the “challenged benefits decision was probably not wrong, and it was certainly not ‘arbitrary and capricious.’” Agreeing with Aetna that its denial was reasonable and supported by evidence within the administrative record, including video surveillance, the court held that Ms. Boatwright’s interstitial cystitis and fibromyalgia did not prevent her from working in any reasonable occupation. Thus, the court granted Aetna’s motion for summary judgment and denied Ms. Boatwright’s summary judgment motion. 

ERISA Preemption

Third Circuit

The Plastic Surgery Ctr., P.A. v. United Healthcare Ins. Co., No. 3:21-cv-12441, 2022 WL 993374 (D.N.J. Apr. 1, 2022) (Judge Peter G. Sheridan). Plaintiff is an out-of-network surgery center that performed surgery on a patient insured by defendant United Healthcare Insurance Company. United paid only about $13,000 for the nearly $200,000 surgery. About a year and half after the surgery was performed, defendant MultiPlan, Inc. sent Letters of Agreements to the two surgeons agreeing in writing to settlements in the amount of $80,775.20 for Dr. Kaufman and $72,920.80 for Dr. Cohen. MultiPlan and United did not pay the full amount embodied in the Letters of Agreement, leading to this suit. Plaintiff brought claims for breach of contract, promissory estoppel, and negligent misrepresentation. Defendants moved to dismiss. Plaintiff moved for leave to file an amended complaint. Following oral argument, the court in this order denied both motions. First, the court stated that defendants’ ERISA preemption argument and the significant factual questions regarding the agreement and how it relates to the ERISA plan require discovery to resolve. For this reason, the court denied the motion to dismiss. The court also denied the motion to amend, concluding that an amendment to add claims pertaining to oral misrepresentations would be futile because plaintiff failed to allege these representations with requisite specificity. 

Life Insurance & AD&D Benefit Claims

Ninth Circuit

Miller v. Unum Life Ins. Co. of Am., No. 2:21-cv-00716-RGK-AFM, 2022 WL 1055375 (C.D. Cal. Mar. 31, 2022) (Judge R. Gary Klausner). Is speeding a crime? That was the central question of this Accidental Death and Dismemberment (“AD&D”) ERISA case. Plaintiff Lily Miller, as the surviving beneficiary of her son, submitted claim for AD&D benefits issued by Unum Life Insurance Company of America. The claim was denied pursuant to the plan’s “crime exclusion.” Ms. Miller’s son, Ali Miller, died in a motorcycle accident. California Highway Patrol determined that Mr. Miller had been driving about 30 miles per hour over the speed limit. Although the plan does not define the term “crime,” Unum, in denying the claim, held that Mr. Miller’s speeding “was in violation of a California Vehicle Code which is considered a crime in the state of California.” Parties submitted their trial briefs to the court for a bench trial. The court concluded whether the trial infraction would be understood as a crime was ambiguous, and “where an ambiguity exists, the court ‘must resolve it in favor of the insured,’” and therefore granted judgement in favor of Ms. Miller. 

Pension Benefit Claims

Federal Circuit

King v. United States, No. 18-1115, 2022 WL 1055628 (Fed. Cl. Apr. 8, 2022) (Judge Richard A. Hertling). UPS retirees who are vested participants in the New York State Teamsters Conference Pension and Retirement Fund sued the United States arguing that the Department of Treasury, the Department of Labor, and the Pension Benefit Guaranty Corporation violated the takings clause of the fifth amendment by authorizing cuts to their pension benefits via the Multiemployer Pension Reform Act of 2014. Defendant moved for summary judgment on the grounds that the retirees have not identified a constitutionally cognizable property interest, and that no action taken by the government gave rise to a taking. The court in this order reached many conclusions, and only granted in part the motion for summary judgment. First, the court concluded, contrary to the government’s position, that plaintiffs had identified a specific cognizable property interest in receiving their unreduced and vested pension benefits. The court agreed with the retirees that their right to receive the unreduced pension payments derives not from ERISA or any other statue, but from their pension contracts with the Teamsters Fund. Next, the court expressed that it could not decide whether plaintiffs did or did not demonstrate sufficient government action to give rise to a taking. The court did decide though that plaintiffs successfully demonstrated that the government “acted in a manner that could potentially give rise to a taking, depending on the applicable test, or whether the defendant has successfully demonstrated that the government did not act in a way that could ever constitute a taking, no matter which test is applied to the plaintiffs’ claims.” There was an argument to be made, the court held, that the government’s action in approving the Fund’s application had an intended and direct effect of curtailing plaintiffs’ vested pension benefits. However, under the physical takings test, the court concluded that plaintiffs could not demonstrate either an agency relationship between the Fund and the government nor government coercion. Accordingly, defendant was granted summary judgment with regards to the retirees’ claims relying on the theories of coercion and agency. In all other respects, the court concluded that genuine issues of material dispute, precluded summary judgment. 

First Circuit

Holt v. Raytheon Techs. Corp., No. 20-11244-FDS, 2022 WL 993817 (D. Mass. Mar. 31, 2022) (Judge F. Dennis Saylor IV). This suit is a pension benefit dispute in which the plaintiff, Michael Holt, claims that he lost pension credits for the thirteen years he worked for Texas Instruments, which was later acquired by the Raytheon Technologies Corporation. As a result, Mr. Holt is receiving a monthly pension benefit of just over $4,000 per month, rather than the over $7,000 per month he believes he should be receiving. The plan’s benefits committee denied Mr. Holt’s application for additional retirement benefits for the period he worked prior to 1999, asserting that he had received a $30,000 lump sum payment in 1995 upon termination of his employment at Texas Instruments. Mr. Holt and his wife strongly dispute this, and claim they were never paid any lump sum distribution. Having exhausted internal appeals, Mr. Holt commenced this suit under Sections 502(a)(1)(B), (a)(3), and (g) of ERISA. The parties filed cross motions for summary judgment. In addition, Mr. Holt filed a motion to strike screenshots Raytheon submitted of their pension-system database that the company claims prove Mr. Holt received the lump-sum payment. Mr. Holt objected to the screenshots “on the basis that the database is unreliable, unauthenticated, and constitutes hearsay.” Nor were the screenshots presented to the committee at any point and were not even created until after the lawsuit began. Mr. Holt further stated that no other records beside the screenshots including any tax records or records from any bank account or investment account support Raytheon’s assertion. The court stated that “based on the limited paper record, it is difficult for the Court to make a decision de novo as to the merits of the claim,” and decided remand was appropriate here. The court thus denied all claims before it and remanded to the committee for further review as to the credibility of Mr. Holt and his wife, the precise nature of the screenshots, and to investigate the absence of any spousal consent or waiver pertaining to the disputed Texas Instruments benefits distribution. 

Ninth Circuit

Bafford v. Northrop Grumman Corp., No. 2:18-cv-10219-ODW, 2022 WL 1002350 (C.D. Cal. Apr. 4, 2022) (Judge Otis D. Wright, II). Plaintiffs are retirees of Northrop Grumman and participants in retirement plans sponsored by Northrop. Plan administrator, defendant Alight Solutions LLC, miscalculated plaintiffs’ retirement benefits and informed plaintiffs in the years leading up to their retirement that they would be receiving these miscalculated greater benefit amounts. In fact, after retiring plaintiffs did receive for some time the higher amounts they had been promised before the plan’s administrative committee discovered the error and recalculated and reduced the benefit amounts. Plaintiffs accordingly suffered a financial loss from these reductions and commenced this putative class action against the Northrop Grumman Corporation, the administrative committee, and Alight. Plaintiffs bring ERISA claims against the administrative committee and state-law claims for negligence and negligent misrepresentation against Alight. In this order, the court addressed supplemental and diversity jurisdiction over the state-law claims against Alight. The court concluded that it either lacks supplemental jurisdiction because the claims against the administrative committee and those against Alight “do not derive from a common nucleus of operative facts, and that, to the extent there are common facts between the two sets of claims, those facts are ancillary,” or has supplemental jurisdiction over the claims but decided to exercise its discretion to decline this jurisdiction. Next, the court held that it lacks diversity jurisdiction against Alight because plaintiffs could not demonstrate the citizenship of Alight and prove by a preponderance of evidence that Alight is “a citizen of a state or states that include neither California nor Utah.” Accordingly, the court dismissed the claims against Alight without prejudice and denied as moot Alight’s motion to dismiss. 

Pleading Issues & Procedure

Seventh Circuit

Penske Truck Leasing Co. v. Cent. States, Se. & Sw. Areas Pension Plan, No. 21-cv-05518, 2022 WL 1028927 (N.D. Ill. Apr. 6, 2022) (Judge Andrea R. Wood). Plaintiff Penske Truck Leasing Co. L.P. filed suit against Central States Southeast and Southwest Areas Pension Plan and the plan’s trustees. Plaintiff seeks to prevent the plan from proceeding with its expulsion of its Dallas, Texas employee bargaining union, Local Union No. 745. The court previously granted plaintiff’s request for a temporary restraining order to maintain the status quo. Now, plaintiff moves for a preliminary injunction. Plaintiff argued that the trustees’ decision to expel its bargaining union violates ERISA and the Nation Labor Relations Act, and is arbitrary and capricious. The court denied the motion holding that the company failed to show that is has a likelihood of success on the merits. The court stated that the trustees had the authority under the plan to expel Local 745 and that their decision to do so was not arbitrary and capricious because it was based on a reasonable consideration of the threat of economic harm to the plan. 

Ninth Circuit

Davis v. Salesforce.Com., No. 21-15867, __ F. App’x __, 2022 WL 1055557 (9th Cir. Apr. 8, 2022) (Before Circuit Judges Hawkins, Paez, and Watford). Plaintiffs/appellants are plan participants who brought ERISA claims for breach of fiduciary duty of prudence and duty to monitor. They appealed the district court’s order dismissing their suit for failure to state a claim. The Ninth Circuit reversed and remanded for further proceedings. The Ninth Circuit held that plaintiffs/appellants adequately alleged a claim for breach of duty of prudence under the Twombly/Iqbal pleading standard. The appeals court reiterated its earlier opinion that “a trustee cannot ignore the power the trust wields to obtain favorable investment products, particularly when those products are substantially identical-other than their lower cost-to products the trustee has already selected.” Defendants/appellees arguments against reversing the lower court’s order were determined by the Ninth Circuit to be factual issues that cannot be resolved at the pleading stage. In a circumstance where both defendant and plaintiff have plausible theories, “plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6).” Finally, because the parties agreed that the duty-to-monitor claim is derivative of the imprudence claim, and as the court of appeals concluded plaintiffs adequately alleged a claim for breach of the duty of prudence, it also reversed the district court’s dismissal of the failure-to-monitor claim. 

Provider Claims

Third Circuit

Advanced Orthopedics & Sports Med. Inst. v. Horizon Healthcare Servs., No. 21-12397, 2022 WL 993329 (D.N.J. Apr. 1, 2022) (Judge Michael A. Shipp). This action stems from a back surgery plaintiff Advanced Orthopedics & Sports Medicine Institute performed on a patient insured by an employee health benefits plan administered by Blue Cross and Blue Shield. Advanced Orthopedics pre-authorized the surgery. Although Advanced Orthopedics was an out-of-network provider for the patient, the patient was nevertheless required to use its services because there were no qualified in-network orthopedic surgeons who could perform the surgery. Advanced Orthopedics submitted bills totaling nearly $350,000 to the insurer. Advanced Orthopedics was reimbursed less than $6,000 in total for the surgery. This gross underpayment prompted Advanced Orthopedics to sue pursuant to ERISA Section 502(a)(1)(B). Advanced Orthopedics argued that defendants violated plan obligations by underpaying benefits in an arbitrary and capricious manner. Defendants then moved to dismiss. As an initial matter, the court held that plaintiff has standing to bring this action given its assignment of benefits. Defendant Horizon Healthcare Services, Inc. argued that it is not a proper party under Section 502(a)(1)(B) because it is a host with no discretionary authority and no control over the plan. The court agreed and dismissed the count against Horizon. The court then examined whether the underpayment constituted a violation of the plan. The court agreed with defendants that “nothing in the Plan requires application of (the FAIR Health index) methodology or use of that particular database.” Therefore, the court concluded that Advanced Orthopedics’ underpayment grievance failed as a matter of law, and granted the motion to dismiss. 

Subrogation/Reimbursement Claims

Fourth Circuit

Duke Energy Benefits Comm. V. Bridget Heafner & Demayo Law Offices, LLP, No. 3:21-CV-255-GCM-DSC, 2022 WL 1056420 (W.D.N.C. Apr. 8, 2022) (Judge Graham C. Mullen). Magistrate Judge David S. Cayer in his Report & Recommendation concluded that Section 502(a)(3) authorizes a plan administrator to sue a plan participant’s attorney to obtain reimbursement from the participant’s settlement proceeds under a plan’s subrogation and reimbursement clause. Defendant DeMayo Law Offices, LLP, objected to this finding and asked the court to reconsider the recommendation of the Magistrate Judge. The court, however, agreed with the conclusion in the Magistrate’s Report & Recommendation, and denied the motion to dismiss. Important to the court’s decision was the Supreme Court decision in Harris Trust & Sav. Bank v. Salomon Smith, Inc., 530 U.S. 238, 246 (2000), that Section 502(a)(3) “admits of no limit … on the universe of possible defendants,” and the only limitation on Section 502(a)(3) is that the plaintiff seeks “appropriate equitable relief.” Both Magistrate Judge Cayer and Judge Mullen were in agreement that the Harris Trust decision clearly answers the question at issue and makes clear that an attorney can be held liable for withholding settlement proceeds and sued for reimbursement. 

Withdrawal Liability & Unpaid Contributions

Eighth Circuit

Trs. of The Int’l Ass’n of Sheet Metal, Air, Rail, & Transp. Workers (Smart) Local Union No. 36 v. H&H Sheet Metal & Contracting Co., No. 4:21-cv-00381-AGF, 2022 WL 1026861 (E.D. Mo. Apr. 6, 2022) (Judge Audrey G. Fleissig). Plaintiff, The Trustees of the International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART) Local Union No. 36 Pension Plan, is a multiemployer pension plan that initiated this suit against an employer, H & H Sheet Metal and Contracting Company (“H & H”), seeking to collect the withdrawal liability it assessed after H & H ceased contributions and withdrew from the plan. Plaintiff moved for summary judgment. The court concluded that the undisputed facts show that the plan is a multiemployer pension plan, H & H was an employer for the purposes of ERISA, the plan notified H & H of the assessed liability, and H & H failed to initiate arbitration within the statute of limitations. Given this, the court held that the pension plan was entitled to summary judgment. Therefore, the court granted plaintiff’s summary judgment motion and entered judgment against H & H in the amount of $1,876,896.00 in outstanding withdrawal liability, $352,856.45 in interest, and $1,200.00 in liquidated damages.