and 03-3448 BOARD OF TRUSTEES OF TRUCKING EMPLOYEES OF NORTH JERSEY WELFARE FUND,… v. Kero Leasing Corporation, a New Jersey Corporation

PRECEDENTIAL
UNITED STATES COURT
OF APPEALS FOR THE
THIRD CIRCUIT
Nos. 03-2176, 03-2344,
03-3283 and 03-3448
BOARD OF TRUSTEES
OF TRUCKING EMPLOYEES
OF NORTH JERSEY WELFARE
FUND, INC-PENSION FUND
v.
KERO LEASING CORPORATION,
a New Jersey Corporation;
ROBERT C. HOLMES, a proprietor,
individually, jointly and severally;
HOLMES LEASING COM PANY, a
proprietorship
(D.C. Civil No. 98-cv-1476)
ROBERT C. HOLMES
v.
BOARD OF TRUSTEES OF
TRUCKING EMPLOYEES OF
NORTH JERSEY WELFARE
FUND, INC.-PENSION FUND
(D.C. Civil No. 02-cv-0059)
BOARD OF TRUSTEES OF
TRUCKING EMPLOYEES
OF NORTH JERSEY, WELFARE
FUND, INC.-PENSION FUND,
Appellant Nos. 03-2176
and 03-3283
BOARD OF TRUSTEES OF
TRUCKING EMPLOYEES OF
NORTH JERSEY WELFARE FUND,
INC-PENSION FUND
v.
KERO LEASING CORPORATION,
a New Jersey Corporation;
ROBERT C. HOLMES, a proprietor,
individually, jointly and severally;
HOLMES LEASING COM PANY, a
proprietorship
(D.C. Civil No. 98-cv-1476)
ROBERT C. HOLMES
v.
BOARD OF TRUSTEES OF
TRUCKING EMPLOYEES OF
NORTH JERSEY WELFARE FUND,
INC.-PENSION FUND
(D.C. Civil No. 02-cv-0059)
ROBERT C. HOLMES,
Appellant Nos. 03-2344
and 03-3448
Appeals from the United States
District Court for the
District of New Jersey
(D.C. Civil Nos. 98-cv-1476
and 02-cv-0059)
District Judge:
Honorable Joseph A. Greenaway, Jr.
Argued February 24, 2004

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2
Before: RENDELL, BARRY and
ROSENN, Circuit Judges.
(Filed July 12, 2004 )
Elizabeth Roberto (ARGUED)
Roberto Law Offices
811 Fitzwater Street
Philadelphia, PA 19147
David W. New
Herbert New & David New
300 Broadacres Drive, 3rd Floor
Bloomfield, NJ 07033
Counsel for Appellant/Cross Appellee
Arthur G. Telegen (ARGUED)
Robert A. Fisher
Foley Hoag
155 Seaport Boulevard
Boston, MA 02210
Counsel for Appellee/Cross Appellant
OPINION OF THE COURT
RENDELL, Circuit Judge.
In these appeals we are called upon
to determine the relevant statute of
limitations for an action brought by the
trustees of a pension fund to recover
withdrawal liability. The appellee, Robert
Holmes, is the former sole shareholder of
a company that ceased making payments to
the plan, and the former sole proprietor of
another related company. The District
Court held that the action instituted by the
pension fund against Holmes was
untimely, as the complaint was filed seven
years after the cause of action accrued, one
year beyond the statute of limitations set
forth in the Multiemployer Pension Plan
Amendments Act of 1980 (“MPPAA”), 29
U.S.C. §§ 1381-1461. For the reasons set
forth below, we will affirm in part and
reverse in part.
I.
The appellant, Board of Trustees of
Trucking Employees of North Jersey
Welfare Fund, Inc. – Pension Fund (“the
Fund”), is the plan sponsor of a
multiemployer fund established under the
Employee Retirement Income Security Act
of 1974 (“ERISA”). 29 U.S.C. §§
1 0 0 2 (3 7 ) , 1 3 0 1 ( 3 ) . E m p l o y e rs
participating in the Fund’s pension plan
made contributions to the Fund based on
terms set forth in collective bargaining
agreements they negotiated with their
employees.
Holmes was once the chief
executive officer of a trucking company
called Holmes Transportation Inc.
(“HTI”). During the 1980s, Holmes
c r e a te d w h o l l y- o w n e d s u b s i d ia ry
companies to su pp ly employees,
equipment, and land to HTI. One of these
companies was Holmes Leasing Company
(“Holmes Leasing”), a sole proprietorship
that owned and leased equipment to HTI.
Another was Kero Leasing Corporation
(“Kero”), a New Jersey corporation that
provided employees to work at a certain
HTI terminal. Holmes was the sole

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3
proprietor of Holmes Leasing and the sole
shareholder of Kero. Kero entered into a
collective bargaining agreement with the
union representing its workers.1 The
agreement required Kero to make
contributions on behalf of its employees to
the Fund’s pension plan.
In March of 1987, Holmes agreed
to sell HTI to Route Resources, a
Canadian-owned holding company. The
sale was consummated in September of
1988, and Kero’s stock was included in the
sale along with all interests in Holmes’s
sole proprietorships. In December of
1988, after Route Resources had assumed
ownership and control of his businesses,
Holmes retired to Florida. According to
the Fund’s complaint in this action, Kero
stopped making contributions to the Fund
in December of 1989, prior to the
expiration of its duties under the collective
bargaining agreement.2 As a result, an
assessment for withdrawal liability was
mandatory under the provisions of the
MPPAA. See 29 U.S.C. § 1381. On
February 27, 1990, upon realizing that
Kero had withdrawn from the plan, the
Fund sent a notice of the statutory
assessment of withdrawal liability to Kero.
On March 7, 1991, after no
payments were made by Kero, the Fund
sent a letter to Route Resources regarding
the default in payments, and the
withdrawal liability was demanded in full.
When Kero continued to default on its
withdrawal liability payments, the Fund
filed a complaint in the United States
District Court for the District of New
Jersey against Route Resources, alleging
that it was under common control with
Kero at the time of its withdrawal and was
therefore responsible for the liability. No
answer was filed, and on December 13,
1995, a default judgment was entered
against Route Resources.
Notwithstanding its success in
obtaining the default judgment, the Fund
continued to be unable to collect any of the
withdrawal liability. On January 8, 1998,
counsel for the Fund sent a letter to
Holmes asking him to appear for a
deposition, to provide information about
Route Resources, Kero, and any other
1Holmes initially signed the agreement
himself, since the agreement was formed
just prior to Kero’s incorporation. Once
Kero was incorporated in October of 1985,
Holmes assigned the collective bargaining
agreement, and the duty to contribute to
the Fund, to the corporation.
2The District Court made no specific
finding with respect to this fact, noting that
it was disputed by the parties and that the
withdrawal occurred sometime during this
sale or a subsequent sale of the businesses
by Route Resources. We rely on the time
of withdrawal asserted in the complaint for
purposes of describing the factual setting.
However, our analysis is not impacted by
the choice of a specific date, as Holmes
had indisputably severed his ties to his
companies at the time the relevant notices
were sent and the complaints were filed.

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4
related corporations that might be
responsible for the withdrawal liability.
The letter also specified the amount that
Kero owed and noted that a default
judgment had been entered against Route
Resources. However, the letter did not
contain any indication that the Fund would
seek to impose liability on Holmes
personally. Meanwhile, the Fund
instituted the instant action by filing a
complaint in the District of New Jersey on
March 31, 1998, naming Kero, Holmes
Leasing, and Holmes personally as
defendants. After his deposition on July
22, 1998, Holmes received a copy of the
complaint in this matter from the Fund’s
counsel. According to Holmes, this was
his first notice that the Fund was seeking
to collect the withdrawal liability from
him.
II.
The Fund’s complaint in the instant
case demands judgment against all three
named defendants, including Holmes
personally, in the amount of the
withdrawal liability, plus interest,
attorneys’ fees, and costs. Holmes was the
only defendant to answer the complaint,
and he is the only appellee to file a brief in
this appeal. Initially, both the Fund and
Holmes filed motions for summary
judgment on the merits. The District Court
denied both motions and referred the
matter to arbitration in accordance with the
MPPAA, 29 U.S.C. § 1401. The Court
also ordered Holmes to make interim
withdrawal liability payments to the Fund
while the arbitration was pending. See 29
U.S.C. § 1399(c)(2); Bd. of Trs. of
Trucking Employees of N. Jersey Welfare
Fund, Inc. – Pension Fund v. Centra, 983
F.2d 495, 507 (3d Cir. 1992).
During arbitration, Holmes argued,
inter alia, that the Fund failed to provide
notice of its intention to seek the
withdrawal liability from Holmes
personally “as soon as practicable” after
Kero’s withdrawal, as required by 29
U.S.C. § 1399(b)(1), and should therefore
be barred from assessing the withdrawal
penalty against him. In December of
2001, the arbitrator issued an opinion
agreeing with Holmes and dismissing the
Fund’s claim for withdrawal liability.3
3The dissent implies that the Fund and
its attorneys acted diligently from the time
the withdrawal liability accrued, and that
they were constantly engaged in good faith
attempts to track down “Kero’s phantom
owners.” Dissent at 8. However, the
arbitrator’s findings, which were based on
information that came to light during
discovery a s sociate d w ith th o se
proceedings, indicate that the Fund knew
or should have known of Holmes’s
connection to Kero, its sale, and the
withdrawal liability in the early 1990s. In
other words, the six year limitations period
created by Congress in the MPPAA did
provide enough time for the Fund to learn
of potential controlled group members.
The Fund had the option of pursuing
Holmes personally several years earlier
than it did, and well within the statute of
limitations, but it simply chose not to do

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5
While the arbitration was proceeding, the
Fund appealed the District Court’s order
denying summary judgment and referring
the matter to arbitration. Holmes cross-
appealed and moved to reopen the record
to explore whether the six year statute of
limitations under the MPPAA had expired,
based on the fact that, during discovery
related to the arbitration, he became aware
for the first time that the Fund had sent a
letter in March of 1991 accelerating the
withdrawal liability. Accordingly, he
urged that the action commenced in 1998
should be dismissed as untimely.
Another panel of our court
considered these appeals and remanded the
matter in September of 2001, directing the
District Court to determine whether the
statute of limitations had expired prior to
the filing of the 1998 action. The District
Court reopened the record, and the parties
filed another round of motions for
summary judgment. The Court ultimately
granted summary judgment in favor of
Holmes on April 22, 2003, and ordered the
Fund to reimburse him in an amount equal
to the interim payments, interest,
attorneys’ fees and costs Holmes had
already paid to the Fund as required by the
MPPAA, as well as interest on those
payments. The Court first determined that
the cause of action accrued with the
sending of the March 1991 letter. See Bay
Area Laundry & Dry Cleaning Pension
Trust Fund v. Ferber Corp. of Cal., Inc.,
522 U.S. 192, 194 (1997) (holding that a
new statute of limitations starts to run with
each missed payment or when payment of
the debt is accelerated). Strictly applying
the six year statute of limitations in this
case, the Court then concluded that the
limitations period expired in 1997, and that
the action was brought approximately one
year too late.
The Fund urged the Court to
characterize the 1998 action as an
enforcement, as against Holmes, of the
1995 default judgment that had been
entered against Route Resources. The
Court rejected this theory, adopting
reasoning similar to that employed in
Central States, Southeast & Southwest
Areas Pension Fund v. Mississippi
Warehouse Corp., 853 F. Supp. 1053
(N.D. Ill. 1994), and distinguishing
controlled group liability under the
MPPAA from other alter-ego theories of
liability. In doing so, the Court declined to
follow the lead of certain other New Jersey
district courts that had permitted actions
brought after the six year limitations
period to proceed by characterizing them
as enforcement actions against persons
who were not previously named, but who
were admittedly controlled group members
with the defendants that had been named.
The Court emphasized that Holmes had
sold his interests in the entities in 1988 –
before the liability arose and before notice
of it was given – and that he continued to
dispute his status as a member of the
controlled group with Kero. Cf. Bd. of
Trs. of Trucking Employees of N. Jersey
Welfare Fund, Inc. v. Gotham Fuel Corp.,
860 F. Supp. 1044 (D.N.J. 1993) (applying
so.

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6
New Jersey’s twenty year statute of
limitations for enforcing judgments to an
action seeking to enforce a default
judgment, where defendants were not
parties to the earlier action but did not
dispute their status as members of the
relevant controlled group); Bd. of Trs. of
Trucking Employees of N. Jersey Welfare
Fund, Inc. v. Able Truck Rental Corp., 822
F. Supp. 1091 (D.N.J. 1993) (same).
Ultimately, the District Court held
that any action by the Fund seeking to hold
a potential controlled group member like
Holmes jointly and severally liable for the
withdrawal assessment had to be brought
within the MPPAA’s six year statute of
limitations. Thus, the Fund’s action was
dismissed with prejudice, and the Fund
was ordered to return all payments made
by Holmes, with interest.4 The Fund
appealed this order, and Holmes cross-
appealed. The District Court also issued a
Judgment ordering that the payments made
by Holmes were to be reimbursed. The
Fund appealed certain aspects of the
Judgment, and Holmes cross-appealed
once more. Before us now are both sets of
appeals and cross-appeals, which have
been consolidated for our review.
III.
This action was brought under
ERISA and the M PPAA. The District
Court had jurisdiction over it pursuant to
29 U.S.C. § 1451(c). We review the
District Court’s final order granting
summary judgment in favor of Holmes
based on 28 U.S.C. § 1291. Because the
issues involved are purely legal, we
exercise plenary review of the District
Court’s grant of summary judgment, its
interpretation of the MPPAA’s statute of
limitations provision, and its award of
damages in light of ERISA’s anti-
inurement provision. IUE AFL-CIO
Pension Fund v. Barker & Williamson,
Inc., 788 F.2d 118, 122 (3d Cir. 1986).
However, where the relevant statutes are
silent or ambiguous, we will defer to any
reasonable regulations promulgated by the
Department of Labor in connection with
the statutory provisions at issue in this
case. See Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837
(1984).
IV.
In their various briefs, the parties
raise numerous issues related to the proper
application of the statute of limitations to
this action, the merits of the District
Court’s first opinion ordering arbitration,
4The District Court also vacated the
arbitrator’s opinion without discussing the
merits of the determinations made by the
arbitrator, as the statute of limitations
mandated dismissal and rendered the
arbitration moot. Thus, the District Court
did not discuss whether Holmes received
notice “as soon as practicable,” nor shall
we. Such an inquiry would only become
relevant after a finding that the action was
filed within the six year limitations period,
and that further issues governed by the
MPPAA could be explored.

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7
the enforcement of the arbitrator’s order,
and the amount of reimbursement included
in the District Court’s final judgment. We
will not reach many of these issues, as we
will affirm the District Co urt’s
determination related to the MPPAA’s
statute of limitations. In light of our
conclusion that the action was untimely,
the only other issues that require our
attention are those related to the
calculation of the Fund’s reimbursement to
Holmes. We will discuss both of the
pertinent issues – the statute of limitations,
and the judgment amount – in turn.
A.
We first consider what the
applicable statute of limitations is in the
context of the Fund’s action as it is stated
in the 1998 complaint. Under the
MPPAA, when an employer prematurely
ceases making payments into a pension
plan, the trustees of the plan can assess the
w i t h d r a w a l lia bi lity a g a inst th e
withdrawing employer in an amount
representing that employer’s pro rata share
of the payments remaining due to the
pension fund.5 29 U.S.C. § 1381(b)(1).
The MPPAA extends responsibility for
5In disputes that arise under the
MPPAA, the following sequence of events
normally occurs. First, the trustees of the
plan determine that an employer has
withdrawn within the meaning of the
MPPAA. 29 U.S.C. §§ 1382(1),
1399(b)(1)(A)(I). The trustees then notify
the employer of its liability, demand
payment, and offer an amortization
schedule. Id. at §§ 1382(2), 1382(3),
1399(b)(1)(B). The employer then has
ninety days to request that the trustees
conduct a reasonable review of the amount
of liability. Id. at § 1399(b)(2)(A)(I). If
the dispute is not resolved at that time,
either party may initiate arbitration within
the relevant time period set forth in §
1401(a)(1). An employer will waive its
statutory rights to dispute aspects of the
Fund’s liability determination where
arbitration is not demanded within the time
period prescribed by the statute. Barker &
Williamson, 788 F.2d at 129. During
arbitration, determinations made by the
Fund regarding withdrawal liability
amounts or classification of an employer
as a responsible party are entitled to a
presumption of correctness, unless the
employer shows by a preponderance of the
evidence that the determinations are
unreasonable or clearly erroneous. Id. at §
1401(a)(3)(A).
Regardless of requests for review or
arbitration, an employer must begin
making interim payments of the
withdrawal liability, following the
schedule set forth by the trustees, within
sixty days of receiving the initial notice of
liability. Id. at §§ 1399(c)(2), 1401(d); see
Galgay v. Beaverbrook Coal Co., 105 F.3d
137, 139 (3d Cir. 1997). When the
arbitration concludes, either party may
bring an action in federal district court “to
enforce, vacate or modify the arbitrator’s
award.” Id. at § 1401(b)(2).

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payment of withdrawal liability beyond the
withdrawing employer to “all employees
of trades or businesses (whether or not
incorporated) which are under common
control.” 29 U.S.C. § 1301(b)(1). In this
case, the Fund seeks to use this provision
in order to hold Holmes liable for Kero’s
withdrawal liability, as he was once the
CEO of one business under common
control with Kero, and sole proprietor of
another.
In setting forth the parameters for
civil actions brought under the MPPAA,
Congress imposed a specific statute of
limitations that governs actions to recover
withdrawal liability. According to §
1451(f)(1) of the statutory scheme, the
Fund’s MPPAA action must have been
brought within “6 years after the date on
which the cause of action arose,” in order
for it to be considered timely.6 According
to the Supreme Court, a cause of action for
withdrawal liability arises under the
MPPAA each time an employer fails to
make a payment as scheduled by the plan
trustees, and the trustees have no
obligation to accelerate the debt when an
employer defaults. Bay Area, 522 U.S. at
194-95. However, in a case where the
trustees elect to accelerate the liability by
demanding payment in full following an
employer’s default, which is permissible
under 29 U.S.C. § 1399(c)(5), the six year
period begins to run when the liability is
accelerated. See id. at 209 n.5 (“The
statute of limitations on an accelerated
debt runs from the date the creditor
exercises its acceleration option . . . .”);
see also Bd. of Trs. of Dist. No. 15
Machinists’ Pension Fund v. Kahle Eng’g
Corp., 43 F.3d 852, 857 (3d Cir. 1994)
(discussing the application of a statute of
limitations to a debt payable in
installments).
The parties here apparently do not
dispute the fact that the letter sent to Kero
by the Fund in March of 1991 accelerated
the liability by demanding payment in full.
Thus, the District Court correctly
identified the date of that letter as the
event that marked the starting point for the
six year statute of limitations according to
the Supreme Court’s discussion in Bay
Area. In light of that fact, the period for
bringing actions under the MPPAA to
recover Kero’s withdrawal liability ended
in March of 1997, one full year prior to the
filing of the instant complaint. Without
looking any further, it appears as though a
straightforward application of the six year
limitations period leads to the conclusion
that the Fund’s action here was untimely.
6The statute provides an alternative time
limitation, which allows an action to be
brought within “3 years after the earliest
date on which the plaintiff acquired or
should have acquired actual knowledge of
the existence of such cause of action.” 29
U.S.C. § 1451(f)(2). The provision
indicates that the longer of the two
limitation periods described should apply.
Here, the Fund has never argued that the
alternative period should apply to save its
claims, so we will only consider the six
year limitations period described in the
first paragraph of subsection (f).

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9
However, the Fund seeks to avoid that
conclusion by characterizing the instant
action as one to enforce the 1995 default
judgment it obtained against Route
Resources, and not as an original action
under the MPPAA to impose withdrawal
liability against Holmes. The MPPAA
does not contain a separate provision for
enforcement of judgments. Presumably,
therefore, the enforcement of the judgment
would be a matter of state law, here
carrying a twenty year statute of
limitations, so the Fund urges that the
action was timely.
However, the Fund’s 1998
complaint very clearly states an original
action to recover withdrawal liability
under the M PPAA, not one to enforce a
judgment. Like the complaint filed in
1995 against Route Resources, the first
paragraph of the 1998 complaint explicitly
describes the case as “an action for
collection of withdrawal liability under the
[MPPAA].” In fact, the complaint is
replete with statements indicating that the
action was brought to collect withdrawal
liability from Holmes directly under the
MPPAA. For example, paragraph 32
states that “Defendants have failed to
make any of the monthly payments of the
withdrawal liability assessment; thus, it is
necessary to bring this action to enforce
payment.” Paragraphs 33 and 34 go on to
describe original actions brought under the
MPPAA, 29 U.S.C. § 1451(b), to “enforce
payment of a withdrawal liability
assessment.” Further, the complaint
indicates in paragraph 17 that the amount
of the 1995 default judgment was
$3,670,093.70, but proceeds to demand a
judgment against Holmes in a different
amount, listing payments that would be
sought in an original action under the
MPPAA.
Only two paragraphs of the 1998
complaint even mention the 1995 default
judgment, and nothing related to that
judgment is referenced, either explicitly or
implicitly, in the Fund’s prayer for relief.
Thus, the most obvious reading of the
complaint – and, we think, the only
plausible reading – leads us to conclude
that it states an original action brought
under the MPPAA, rather than one to
enforce the 1995 judgment.7
B.
Notwithstanding the manner in
which the complaint is framed, the Fund
7Indeed, even if we were to adopt the
dissent’s position and hold that a pension
fund may only bring one original action
under the MPPAA to fix withdrawal
liability and must thereafter seek to
enforce the one judgment obtained in that
action, rather than to assert new original
actions, we would conclude that the Fund
has not done so here. In other words, if
the correct course of action for the Fund to
take was to seek enforcement of the 1995
default judgment, we would remain
convinced that the Fund’s failure to
articulate such a cause of action in its 1998
complaint precludes it from prevailing on
this appeal.

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10
urges us to view the complaint differently
based on the following argument. The
Fund’s initial notice of the withdrawal
liability, sent in 1990, constituted
constructive notice to all businesses or
persons that were ever under common
control with Kero. See Barker &
Williamson, 788 F.2d at 127 (holding that
actual notice to an employer serves as
constructive notice to all other members of
a controlled group). The Fund relies on
this principle for the further proposition
that a judgment obtained against one
member of a controlled group is a
judgment against all other members. In
other words, the Fund asserts that a timely
filed suit to recover withdrawal liability
that results in default judgment against one
entity determines the liability of all other
controlled group members, whether or not
they are named as parties to the action.
Thus, this principle would allow the Fund
to enforce the 1995 default judgment
obtained against certain members of
Kero’s controlled group against any other
entity they deem to be an additional
member of that controlled group, including
Holmes.
Because it characterizes this action
as one to enforce a prior judgment, the
Fund urges that it should be governed by
New Jersey’s twenty year statute of
limitations for enforcement of judgments,
N.J. Stat. Ann. § 2A:14-5, rather than by
the MPPAA’s six year limitations period.
The Fund finds support for this view in
two cases decided by New Jersey district
courts, both of which applied the twenty
year limitations period to actions seeking
to enforce prior default judgments for
withdrawal liability under the MPPAA.
See Gotham Fuel, 860 F. Supp. at 1050
(holding that the state limitations period
for enforcement of judgments applies once
a fund establishes that the defendants were
part of the relevant single employer
group); Able Truck, 822 F. Supp. at 1095
(same).
We conclude that the Fund’s
position regarding the statute of limitations
is flawed. Initially, we emphasize our
conclusion, explained fully above, that the
complaint as written simply does not lend
itself to such a reading. The second
amended complaint in this matter, which
was nearly identical to the Fund’s earlier
complaint that resulted in the 1995 default
judgment, explicitly seeks to collect
withdrawal liability from Holmes. Such
an action is governed by the MPPAA’s six
year limitations period. We would find it
difficult to read the 1998 complaint as
setting forth an action to enforce a prior
judgment without disregarding the clear
language of the complaint and engaging in
illogical contortions.8 But even if we
8Additionally, adopting the Fund’s
alternative description of this action as one
to enforce the default judgment would
require us to ignore the character of the
proceedings as they were conducted during
the first three or four years of this
litigation. Prior to our remand instructing
the District Court to examine the statute of
limitations issue, the proceedings in the
District Court and before the arbitrator

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11
chose to reinterpret the complaint as the
Fund suggests, we still think the action is
barred, and that the application of a twenty
year statute for enforcement of judgments
is problematic here. This is so for several
basic reasons.
First, the Fund acknowledges the
fact that it has not obtained a default
judgment against Holmes personally.
Additionally, the District Court refused to
find that Holmes was notified of the
withdrawal liability prior to 1998. The
Fund, therefore, must engage in the
difficult task of convincing us that Holmes
is somehow liable when he was not
notified of the claim in a timely manner;
further, it must persuade us that Holmes is
somehow bound by a judgment in an
action of which he had no actual notice, in
which he was not a named party, and in
which no one actively represented his
interests.
In attempting to accomplish this
feat, the Fund relies heavily on our
discussion in Barker & Williamson.
There, we were asked to decide whether a
company, Sentinel Electronics, was in a
controlled group with the withdrawing
company, Barker & Williamson, and if so,
whether notice to Barker & Williamson
constituted constructive notice to Sentinel.
788 F.2d at 121. We first determined that
Sentinel and Barker & Williamson had
become members of the same controlled
group prior to the pension plan withdrawal
that gave rise to the action. Id. at 122-26.
After deciding that the two companies
were a “single employer” within the
meaning of the MPPAA, we held that
actual notice of the withdrawal liability to
Barker & W illiamson cons tituted
constructive notice to all other members of
its controlled group, including Sentinel.
Id. at 126-30. Thus, like other courts of
appeals, we adopted a “notice to one is
notice to all” rule to be applied in MPPAA
cases. Id. at 127; see also, e.g., Cent.
States, Southeast & Southwest Areas
Pension Fund v. Slotky, 956 F.2d 1369,
1375 (7th Cir. 1992); I.A.M. Nat’l Pension
Fund, Plan A, A Benefits v. Slyman
Indus., Inc., 901 F.2d 127, 129 (D.C. Cir.
1990); Teamsters Pension Trust Fund –
Bd. of Trs. of W. Conference v. Allyn
Transp. Co., 832 F.2d 502, 506-07 (9th
Cir. 1987).
were structured as they would be in an
original action brought under the MPPAA.
The arguments made by the Fund in its
first motion for summary judgment and
before the arbitrator never indicated a
desire to simply enforce the 1995
judgment. For example, the Fund argued
in its first summary judgment motion that
Holmes could not dispute the amount of
the withdrawal liability because he failed
to request arbitration in a timely manner,
and not because he was already bound by
an existing judgment. The Fund’s conduct
throughout the early stages of this
litigation reaffirms our reading of the
complaint as stating an original action
under the MPPAA, rather than an action to
enforce a prior judgment.

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12
However, the principle of “notice to
one is notice to all” announced in Barker
& Williamson does not lead to the
conclusion suggested by the Fund
regarding enfo rcem ent of default
judgments. In Barker & Williamson, there
was no statute of limitations issue before
us, because the pension fund had brought
timely actions under the MPPAA against
both the employer and the potential
members of the controlled group. The
relevant parties were all joined in the
initial litigation, so the fund was not
attempting to enforce any prior judgment,
and the limitations period for arbitrating
disputes under the MPPAA had not yet
run. Also, the issue there involved
whether the defendant company had
become a member of the controlled group
prior to the employer’s withdrawal, rather
than whether the defendant had terminated
its membership in the controlled group
prior to the withdrawal. Therefore, no
question was presented that required
arbitration under the MPPAA; all issues
could be decided by the court on its own.
See Galgay v. Beaverbrook Coal Co., 105
F.3d 137, 141-42 (3d Cir. 1997); see also
Flying Tiger Line v. Teamsters Pension
Trust Fund of Philadelphia, 830 F.2d 1241,
1249-50 (3d Cir. 1987) (distinguishing
Barker & Williamson from a case in which
the issue involved termination of
controlled group status).
In Barker & Williamson, we
determined that, at the time of the
withdrawal, Barker & Williamson and
Sentinel were “brother-sister corporations”
under the Internal Revenue Code standards
incorporated by the MPPA A for
determining controlled group status. 788
F.2d at 123; see 29 U.S.C. § 1301(b)(1).
Here, Holmes had divested himself of his
interests in his former businesses and
retired to Florida in 1988, so it is far from
certain that such a “brother-sister”
relationship could be imputed to Holmes
and Kero at the time of the withdrawal.9
Further, without first determining whether
Holmes was in fact a member of the
controlled group at the time of the
withdrawal, as we did in Barker &
Williamson, we would be hesitant to apply
the “notice to one is notice to all” rule on
the facts of this case, let alone expand the
rule to support a finding that a default
judgment obtained in 1995 is enforceable
against Holmes.10
9We note that it would be even more of
a stretch to find a “brother-sister”
relationship between Holmes and Route
Resources, the company against whom the
1995 default judgment was entered. It
appears as though Holmes passed his ties
to Kero along to Route Resources in the
sale of his companies, so any controlled
group connection between Holmes and
Route Resources would be fairly
attenuated.
10The Fund has not pointed us to a case,
and we are not aware of any, in which we
have applied Barker & Williamson’s
constructive notice concept to a situation
where an employer had severed all ties to
the controlled group entities before the
trustees sent notice of the liability. Under
the cases we have examined, application of

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13
In an effort to provide further
support for its proposed rule, the Fund
directs our attention to two cases decided
by district courts in New Jersey. In those
cases, the lower courts extended our
reasoning in Barker & Williamson to
create a “judgment against one is judgment
against all” rule that they applied to
MPPAA controlled group situations where
a pension fund sought to enforce a prior
judgment against a newly-located member
of the controlled group within the state
statute of limitations for enforcement of
judgments.11 Gotham Fuel, 860 F. Supp.
at 1050; Able Truck, 822 F. Supp. at 1095.
However, several factors counsel against
reliance on the New Jersey district court
cases cited by the Fund. Obviously, we
are not bound by the manner in which the
New Jersey district courts have interpreted
the MPPAA and our relevant precedent.
Furthermore, whereas the courts in Able
Truck and Gotham Fuel indicated that the
actions before them were characterized as
actions to enforce prior default judgments,
the “notice to one is notice to all” concept
is only proper after there has been a
determination regarding membership in the
controlled group. See Barker &
Williamson, 788 F.2d at 126-27
(developing the rule regarding notice after
first concluding that the relevant parties
were controlled group members); see also
Bd. of Trs. of Teamsters Local 863
Pension Fund v. Foodtown, Inc., 296 F.3d
164, 175 (3d Cir. 2002) (applying the
notice rule after establishing alter ego
status and likening the situation presented
to a controlled group); Trs. of
Amalgamated Ins. Fund v. Sheldon Hall
Clothing, Inc., 862 F.2d 1020, 1024 (3d
Cir. 1988) (applying the notice rule after
noting that the district court finding
regarding controlled group status was not
appealed); Trs. of Chicago Truck Drivers,
Helpers & Warehouse Workers Union
(Indep.) Pension Fund v. Rentar Indus.,
Inc., 1989 WL 153559, at *4 (N.D. Ill.
Nov. 8, 1989) (“[O]wners who sell a
business cannot be expected to know of
withdrawal liability assessments which are
served on their successors after control has
been transferred.”).
11Other district courts facing facts
similar to those presented here have
refused to apply a statute of limitations
other than the one described in the
MPPAA. See Mississippi Warehouse, 853
F. Supp. at 1059 (“[E]ach action brought
against an alleged controlled group
member on the basis of joint and several
liability must be brought within the ERISA
limitations period . . . . [A fund] may not
invoke ERISA withdrawal provisions
while simultaneously appealing to a state
statute of limitations for the collection of a
judgment.”); see also Langone v. Esernia,
847 F. Supp. 214, 218-19 (D. Mass. 1994)
(considering a complaint seeking to bring
an original MPPAA action and to enforce
a prior judgment, and granting summary
judgment in favor of defendant sole
proprietor based on statute of limitations
and failure to show why the court should
pierce the corporate veil and hold
proprietor responsible for liability).

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14
applying such a view in this case would
require us to substantially recharacterize
the action originally set forth in the Fund’s
complaint, as we explained above. We are
simply unwilling to do so. Finally,
a key distinction separates the facts before
us from those at issue in Able Truck and
Gotham Fuel and convinces us that the
Fund is time-barred from proceeding with
this action. The defendants in both of the
New Jersey district court cases conceded
membership in the relevant controlled
groups, leaving no unresolved issues that
would require arbitration pursuant to the
MPPAA. Thus, those courts were able to
apply the state enforcement statutes of
limitations without implicating other
MPPAA provisions that would require
resolution through arbitration. Indeed,
those district courts emphasized this fact
as they reached their conclusions
extending the liability determined in prior
judgments to the new parties before them.
See Gotham Fuel, 860 F. Supp. at 1048
(“It is conceded that defendants . . . were,
as of the date of the withdrawal, members
of a controlled group with the contributing
employer . . . .”); Able Truck, 822 F. Supp.
at 1093-94 (“Defendants do not deny that
[they] were members of a controlled group
with [the withdrawing company at the
relevant time]. Thus, the only contested
issue is whether plaintiff’s action is
timely.”).
Here, Holmes cites the sale of his
interests in all of his businesses and his
retirement to Florida, and vigorously
objects to any claim that he should be
deemed a controlled group member at the
time of the withdrawal, leaving us faced
with a dispute that would require
arbitration as dictated by the MPPAA,
including its statute of limitations
provision.12 Thus, we think that the
ultimate problem with the Fund’s position
is the fact that there has been no finding
here by any court or arbitrator that Holmes
was an employer or a member of the
controlled group within the meaning of the
MPPAA at the time Kero withdrew from
the Fund. We conclude that such a finding
would be a necessary predicate to our even
considering the application of the Barker
& Williamson rule, and to any proposed
12Because the facts of the New Jersey
district court cases are distinguishable on
this basis, we need not decide whether the
“judgment against one is judgment against
all” concept adopted by the New Jersey
courts is more generally proper under the
MPPAA, or whether the MPPAA allows
for “enforcement” actions to be brought in
federal court at all. Cf. Peacock v.
Thomas, 516 U.S. 349 (1996) (concluding
that district courts lack jurisdiction over an
action seeking to enforce, as against a
corporation’s officer, a judgment obtained
in a previous ERISA suit involving the
corporation). While a statutory basis for
importing state statutes of limitations
governing enforcement of judgment
actions does not seem apparent to us as we
read the relevant provisions of the
MPPAA, we will not engage in a lengthy
examination and resolution of that issue
here. The issue before us is narrower than
that.

-- 14 of 31 --

15
extension thereof. See supra note 10.
C.
Hoping to avoid the need to obtain
such a finding, the Fund seeks to have the
1995 judgment enforced against Holmes
by asserting a challenge to the sale of
Holmes’s companies, saying that the
purpose of that transaction was to evade
withdrawal liability. So, under the
MPPAA, since any transaction undertaken
for the “principal purpose” of evading or
avoiding withdrawal liability must be
disregarded, Holmes’s sale should be
ignored. 29 U.S.C. § 1392(c). In other
words, an employer might still be
responsible for withdrawal liability, even
after he sells his businesses, if the purpose
of the sale is deemed to bring the
transaction within the scope of § 1392(c).
Here, the Fund urges that Holmes’s sale of
Kero and his other businesses to Route
Resources, which occurred prior to Kero’s
withdrawal from the plan, should not
shield him from liability. We are
unconvinced by this theory as well.
According to the Fund, we must
accept its assertion, stated for the first time
in its 1998 complaint, that Holmes’s sale
of his companies to Route Resources was
undertaken so that he could avoid
withdrawal liability under the MPPAA.
Based on that assertion and its theory that
“judgment against one is judgment against
all” under the MPPAA’s controlled group
provision, the Fund contends that we must
disregard Holmes’s sale, find that he was
in the controlled group with Kero and is
thereby responsible for the withdrawal
liability, and allow the Fund to enforce the
1995 default judgment against Holmes.
It is true that, in an arbitration
proceeding, a pension fund’s finding that
a defendant engaged in a transaction
described in the “evade or avoid”
provision of the MPPAA is accorded a
presumption of correctness, which must be
overcome by proof to the contrary offered
by the defendant. See 29 U.S.C. §
1401(a)(3)(A). And the Fund is correct
that a court may not evaluate whether a
company, which has already been deemed
to have been a member of the controlled
group at one time prior to the withdrawal,
has engaged in a transaction to evade
liability.13 See Flying Tiger, 830 F.2d at
13We have interpreted the MPPAA to
require that “where the party against which
withdrawal liability is being asserted was
certainly part of the controlled group of an
employer subject to the MPPAA at some
point in time, and where the issues in
dispute fall within the purview of MPPAA
provisions that are explicitly designated
for arbitration,” the parties must comply
with the MPPAA arbitration provisions in
resolving their dispute. Flying Tiger, 830
F.2d at 1247. In other words, a federal
district court may not, for example, make
a determination as to whether a particular
transaction was undertaken in order to
evade or avoid withdrawal liability; rather,
that issue is one that is explicitly reserved
for resolution through arbitration. Id.; see
also Galgay, 105 F.3d at 141. However, a

-- 15 of 31 --

16
1247. However, this does not mean that
we must allow a pension fund to bring a
claim against a defendant, alleging for the
first time that he engaged in a transaction
with a purpose of evasion and is thus
liable, after the six year limitations period
under the MPPAA has expired. Neither
does it imply that we must entertain such
an action when a pension fund asserts it
under the guise of enforcing a judgment,
conclusive as to liability.
We are not persuaded that the
MPPAA allows a pension fund, once it has
obtained a default judgment within the six
year period, to initiate a string of suits
against purported members of a controlled
group anytime in the following twenty year
period. This strikes us as especially
troublesome in view of the fact that, if
permitted to avoid the MPPAA’s statute of
limitations here and force Holmes to
litigate this matter beyond the statutory
period, the Fund would have managed to
do so by merely adding a simple paragraph
to its complaint alleging that Holmes’s sale
of his businesses “was to evade or avoid
withdrawal liability.”14 It is one thing to
allow collection of a judgment against
those clearly liable, as the New Jersey
district courts have done, but quite another
to sanction an attempt to bypass the
MPPAA’s limitations provision and
litigate issues related to withdrawal
liability in such a belated action. We hold
that an “evade or avoid” determination
must be asserted, allowing for the
necessary arbitration proceedings that
would be governed entirely by provisions
of the MPPAA, within the six year statute
of limitations that governs proceedings
involving the MPPAA. Thus, applying the
plain language of the statutory provisions,
the Fund is time-barred from raising and
litigating the issue of whether Holmes’s
sale of his companies to Route Resources
in 1988 was undertaken in order to evade
or avoid Kero’s withdrawal liability.
The dissent asserts that our ruling
will vitiate the remedial purpose of the
district court may preliminarily determine
whether the MPPAA applies at all to a
given entity, and it may resolve other
issues where arbitration would cause
irreparable harm to the employer, or where
the question is one of statutory
interpretation. Flying Tiger, 830 F.2d at
1251-54; see also Galgay, 105 F.3d at 142
14Even if we would be required to accept
the Fund’s assertion and consider Holmes
a member of the controlled group until he
refutes the Fund’s “determination” in
arbitration, we would still conclude that
the Fund’s action was untimely. As we
have indicated above, the complaint that
first announces the Fund’s “determination”
was filed beyond the six year statute of
limitations. Further, the only method for
challenging that “determination” is
arbitration, as described by the MPPAA.
Under these circumstances, we find no
basis in either the statutory scheme or the
case law interpreting it to apply a statute of
limitations other than the one clearly
delineated in the M PPAA itself.

-- 16 of 31 --

17
MPPAA and do an injustice to pension
funds seeking to enforce judgments related
to delinquent withdraw al liability
payments. But we do not view our opinion
as doing either of those things. It is true,
as we have previously observed, that the
MPPAA sets up a single-employer, or
controlled group, scheme because a fund
“has no way of knowing the ownership of
a closely held corporation.” Barker &
Williamson, 788 F.2d at 128. But we
made that observation in the context of a
case involving notice of withdrawal
liability, which, under the MPPAA, must
be given “as soon as practicable.” 29
U.S.C. § 1399(b)(1). Thereafter, a pension
fund has six full years to investigate and
prepare to bring a cause of action to
recover the withdrawal liability in a district
court. 29 U.S.C. § 1451(f). Congress
elected to create a relatively long
limitations period to govern actions
brought under the MPPAA, giving pension
funds adequate time to locate corporations
and persons who are pote ntially
responsible for withdrawal liability. See
Central States, Southeast & Southwest
Areas Pension Fund v. Navco, 3 F.3d 167,
171 (7th Cir. 1993), abrogated on other
grounds by Bay Area, 522 U.S. at 194.
On the other hand, the M PPAA is a
remedial statutory scheme which is to be
“liberally construed in favor of protecting
the participants in employee benefit
plans.” Id. at 127. The discrete six year
limitations period furthers this goal,
requiring a fund to act expeditiously in
pursuing payment from members of a
controlled group, rather than allowing such
claims to languish over a twenty year
limitations period.1 5 Accordingly,
Congress has given funds sufficient time
to discover the owners of closely held
corporations and trace the paths of
complicated sales transactions, while at the
same time encouraging funds to act in a
manner that serves the best interests of the
plan participants.
V.
Because we agree with the District
Court that this matter should have been
dismissed as untimely, Holmes is entitled
to a reimbursement of the interim
payments he made while the action was
pending. See 29 C.F.R. § 4219.31(d)
(requiring a plan sponsor to refund
overpayments of withdrawal liability).
The Fund does not dispute the fact that,
given our conclusion regarding the statute
of limitations, it is required to return some
portion of Holmes’s payments. However,
the Fund does assert that the return of
certain amounts described in the District
15We see it fit to emphasize here that we
are to construe this remedial scheme in
favor of the plan participants. This does
not always equate to construing the
scheme in a way that grants wide latitude
to the pension funds. Here, it is in the best
interests of the plan participants to allow
sufficient time for a fund to engage in the
necessary inves tigation related to
identifying potentially liable entities, but to
also motivate the fund to do so in an
expeditious manner.

-- 17 of 31 --

18
Court’s judgment would violate ERISA’s
anti-inurement provision. See 29 U.S.C. §
1103(c) (preventing plan assets from
inuring to the benefit of an employer).
Specifically, the Fund asserts that it should
only be required to return the interim
payments made by Holmes – the return of
which is explicitly provided for in an
exception to the anti-inurement provision
of ERISA, see 29 U.S.C. § 1103(c)(3) –
without having to return his payments of
attorneys’ fees and costs, and without
having to pay interest on the total amount.
A.
We agree with the Fund that it
should be permitted to retain the payments
of attorneys’ fees and costs. A few more
facts are necessary here in order to
understand the context in which these
payments were made, as well as our
decision to allow the Fund to keep them.
In the District Court’s first order referring
this matter to arbitration, the Court ordered
Holmes to begin making interim
withdrawal liability payments to the Fund
in accordance with 29 U.S.C. § 1399(c)(2).
Following this decision, Holmes refused to
make the interim payments that had come
due between the date that he received the
complaint and the date that the Court
ordered him to make the payments. The
Fund filed a Motion for Entry of
Judgment, seeking the overdue payments,
and Holmes filed a Motion for
Clarification, asking whether the Court’s
order mandated the backpayments. After
determining that its order had been clear
and that Holmes was responsible for
making the overdue payments, the Court
entered judgment for the delinquent
payments and ordered Holmes to pay any
attorneys’ fees and costs associated with
the Fund’s efforts to secure payment
pursuant to the original order.
In its final order related to this
matter, after dismissing the Fund’s action
based on the statute of limitations, the
District Court included these attorneys’
fees and costs paid by Holmes in the total
amount the Fund was ordered to return to
him. The Fund offers two reasons
explaining why it thinks the District Court
erred, and why it should not have to return
that portion of the total amount: first, the
Fund notes that the payment arose from
Holmes’s failure to comply with a court
order; and second, the Fund urges that the
payments are now plan assets, which
cannot be returned absent a specific
statutory exception to the anti-inurement
provisions of ERISA. We agree that, for
the first reason offered by the Fund,
Holmes is not entitled to reimbursement of
these costs and fees.
Regardless of the ultimate
disposition of the case, Holmes had an
obligation to comply with the District
Court’s orders that preceded its final
judgment. By refusing to obey the initial
order regarding interim payments, Holmes
forced the Fund to engage in further
litigation in order to secure enforcement of
what was at the time a valid order of the
District Co urt. The subsequent
determination regarding the untimeliness
of the Fund’s action does not serve to

-- 18 of 31 --

19
negate the costs incurred due to Holmes’s
wrongful failure to make the interim
payments ordered by the Court. Thus, we
will reverse the District Court’s judgment
insofar as it orders the Fund to reimburse
Holmes for the payments of these
attorneys’ fees and costs.16
B.
The second issue related to the
reimbursement amount involves the
District Court’s award of interest and its
use of the interest rate set forth in the
Fund’s plan agreement as the interest rate
applicable to delinquent contributions and
payments. The Fund contends that it
should not be required to pay interest on
the amount of the reimbursement, and, in
the alternative, that the interest rate should
be based on prevailing market rates. We
reject both of these arguments. As to the
Fund’s obligation to pay interest, we are
bound by a prior decision of our court.
See Huber v. Casablanca Indus., Inc., 916
F.2d 85, 103 (3d Cir. 1990) (holding that
an ERISA fund may be required to pay
interest on refunds of withdrawal liability
overpayments).17 In Huber, we examined
a regulation promulgated by the
Department of Labor allowing for the
payment of interest on overpayments under
the MPPAA, and we deferred to the
agency’s reasonable construction of the
MPPAA and the anti-inurement provision
of ERISA.18 See 29 C.F.R. § 4219.31(d)
16Because we are persuaded by the
Fund’s first point, we need not determine
w h e t h e r E R IS A ’s a n t i- i n u re m e n t
provision, viewed in light of other
provisions of the MPPAA related to
withdrawal liability refunds, would bar the
return of previously paid attorneys’ fees
and costs here.
17We note that Huber was partially
abrogated, with respect to a separate
holding not relevant here, by the Supreme
Court’s decision in Milwaukee Brewery
Workers’ Pension Plan v. Jos. Schlitz
Brewing Co., 513 U.S. 414, 421 (1995).
18The Fund urges that Huber’s analysis
on this point has been undermined by
intervening developments in this area of
the law. Specifically, the Fund asserts that
our discussion in Huber rested upon our
holding in an earlier case that was
subsequently abrogated by a decision of
the Supreme Court. See United Retail &
Wholesale Employees Teamsters Union
Local No. 115 Pension Plan v. Yahn &
McDonnell, Inc., 787 F.2d 128 (3d Cir.
1986), abrogated in part by, Concrete Pipe
& Prods. of Cal, Inc. v. Constr. Laborers
Pension Trust for S. Cal., 508 U.S. 602
(1993) (involving the constitutionality of
the MPPAA’s presumptions favoring
liability determinations made by
multiemployer plans). We are not
persuaded that our conclusion in Huber
regarding payment of interest was dealt a
fatal blow by the Supreme Court’s
decision in Concrete Pipe, as it is far from
clear that our holding on this point was
dictated solely by our mention of United

-- 19 of 31 --

20
(“The plan sponsor shall credit interest on
the overpayment from the date of the
overpayment to the date on which the
overpayment is refunded . . . .”); see also
Chevron, 467 U.S. at 844. In light of this
binding precedent, the District Court was
correct to include an award of interest in
its judgment order outlining the amount of
Holmes’s reimbursement.
Regarding the interest rate to be
applied when a fund reimburses an
employer for overpayments of withdrawal
liability, we again look to the Department
of Labor’s regulation for guidance.
According to 29 C.F.R. § 4219.31(d), the
Fund must credit interest on the
overpayment “at the same rate as the rate
for overdue withdrawal liability
payments.” In determining what rate
should apply, the Fund may choose
between the rate specified in 29 C.F.R. §
4219.32, which sets out a rate that is
essentially equivalent to the prevailing
market rate for short-term commercial
loans, or the rate specified by the plan
itself pursuant to 29 C.F.R. § 4219.33,
which allows ERISA funds to adopt
reasonable rules setting out interests rates
that will apply to overdue or overpaid
withdrawal liability. Here, the Fund’s plan
agreement sets the interest rate for overdue
withdrawal liability at ten percent, and the
Court applied that rate in constructing its
judgment order. We see no basis for
questioning that determination. While the
rate set by the Fund might be slightly
higher than the current prevailing market
rate, the average rates over time have been
recorded both above and below ten
percent. Further, we note that it seems
somewhat problematic for the Fund to be
challenging its own rate as being
unreasonable, while it presumably
continues to apply that rate against
e m ployers with delinq uent p la n
contributions and overdue withdrawal
liability payments. In any event, we
conclude that the District Court’s award of
interest at a rate of ten percent was proper.
VI.
Accordingly, we will AFFIRM the
order of the District Court granting
summary judgment in favor of Holmes and
dismissing the Fund’s action as untimely.
We will also AFFIRM the judgment of the
District Court to the extent that it orders
the Fund to reimburse Holmes in the
amount of his interim payments, the
interest he paid, and interest on that
amount to be computed at a rate of ten
percent. However, we will REVERSE the
judgment of the District Court to the extent
that it orders the Fund to return the
attorneys’ fees and costs paid by Holmes.
ROSENN, Circuit Judge, dissenting.
The majority has fashioned a
principle that eviscerates the intent of the
Multiemployer Pension Plan Amendments
Retail. Thus, absent a clear statement to
the contrary by the Supreme Court or our
own court sitting en banc, we remain
bound by Huber.

-- 20 of 31 --

21
Act of 1980 (“MPPAA” or “the Act”) and
vitally undermines a pension fund’s ability
to enforce its judgment against a
defaulting employer. Although the
MPPAA provides for a six-year statute of
limitations within which to initiate suits
for the determination of the underlying
pension liability, it is silent with respect to
enforcement of judgments, leaving that
aspect to existing state and federal laws.
The enforcement of judgments often
requires prolonged investigations in an
effort to identify and find related entities
and their resources. The majority expands
the Act’s six-year statute of limitations not
only to govern an underlying claim for
withdrawal liability against an employer,
but also to deny the pension fund an
opportunity to make factual determinations
regarding the liability of related entities.
The evidence in this case shows
that the employer shifted its liability
among a tangled web of domestic and
foreign corporate entities, frustrating the
Trucking Employees of North Jersey
Welfare Fund’s (the “Fund”) continuous
efforts to collect pension liability under the
mechanisms prescribed by ERISA and the
MPPAA . The majority, by treating the
judgment against the employer, Route
Resources, as a nullity with respect to
members of the “control group,” thus
enables the latter to evade statutory
liability under the Act. I believe that the
majority’s expansive and unrealistic
interpretation of the MPPAA’s statute of
limitations and its narrow view of the
control group is contrary to the letter and
purpose of the MPPAA, as well as the
precedent in this circuit. Therefore, I
respectfully dissent.
I.
When drafting the MPPAA,
Congress endowed the legislation with
several key provisions designed to assist
pension funds in collecting withdrawal
liability from delinquent or evasive
employers in situations such as the case at
bar. The statutory scheme provides: (1) all
trades or businesses in a “control group”
will be treated as a “single employer,” 29
U.S.C. § 1301(b)(1); (2) if a pension fund
makes a factual determination that an
employer has conducted a transaction for
the primary purpose of “evading or
avoiding” pension liability, the pension
fund may disregard the transaction, 29
U.S.C. § 1392(c); (3) if an employer
disputes a factual determination made by a
pension fund, that dispute must be
resolved through arbitration before a civil
suit may proceed, 29 U.S.C. § 1401(a)(1);
and (4) suits against an employer to collect
withdrawal liability must be brought
within six years of the accrual of the
action, 29 U.S.C. § 1451(f).
In the seminal case of IUE AFL-
CIO Pension Fund v. Barker &
Williamson, Inc., 788 F.2d 118 (3d Cir.
1986), this court recognized that a liberal
construction of the MPPAA’s provisions
in favor of pension funds is consistent with
the statute’s legislative intent. 788 F.2d at
127 (citing H.R.Rep. No. 869, 96th Cong.,
2d Sess. 71, reprinted in 1980 U.S. Code
Cong. & Ad. News 2918, 2939).

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22
Furthermore, “[c]ourts have indicated that
because ERISA (and the MPPAA) are
remedial statutes, they should be liberally
construed in favor of protecting the
participants in employee benefit plans.”
Id. (citing Smith v. CMAT-IAM Pension
Trust, 746 F.2d 587, 589 (9th Cir. 1984);
Rettig v. PBGC, 744 F.2d 133, 155 (D.C.
Cir. 1984)). In this case, the majority has
disregarded these guideposts, and instead
engages in a rigid construction of the
MPPAA that is inconsistent with the
statute, departs from the prior holdings of
this court, and defies the MPPAA’s
legislative intent acknowledged by this and
other courts.
There are two significant provisions
in the MPPAA that underlie the analysis in
this case. First, the MPPAA stipulates that
pension funds may treat all trades and
businesses under “common control” as a
“sing le employer.” 29 U.S .C. §
1301(b)(1).19 This “single employer”
principle allows pension funds to deal
exclusively with the defaulting employer
known to the fund, while at the same time
assuring themselves that legal remedies
can be maintained against all related
entities in the control group. In Barker &
Williamson, we derived from the
MPPAA’s “single employer” principle the
logical corollary that notice of pension
liability provided to one entity in a control
group constitutes constructive notice to all
entities in the control group. 788 F.2d at
127. We noted the practical necessity for
this principle, acknowledging that pension
funds have no way of knowing ownership
arrangem ents among closely held
corporations. Id. at 128. The court
reasoned that:
[h]olding the fund responsible for
providing notice to all other
poss ible entities that m ight
subsequently be deemed to be in a
controlled group with the employer
corporation would place the fund in
an untenable position. In contrast,
the stockholders and officers of
corporations . . . certainly are aware
of their holdings. If they choose to
ignore . . . potential liability as a
member of a controlled group
under the MPPAA, then they
should suffer the consequences if
t h a t i s sue is subseque ntl y
determined adversely to them.
Id.
Second, Congress acknowledged
that employers owing significant pension
liability may attempt to avoid their
obligations through evasive transactions.
See Flying Tiger Line v. Teamsters
Pension Trust Fund of Philadelphia, 830
F.2d 1241, 1248 (3d Cir. 1987). For
example, a corporate entity with pension
liability may be sold to a separate,
undercapitalized corporate entity that then
declares bankruptcy, thereby frustrating a
pension fund’s efforts to collect from the
employer. To remedy this evasive
practice, the MPPAA states that if the
19 The MPPAA utilizes the definition of
“control group” as prescribed in the
Internal Revenue Code. 29 U.S.C. §
1301(b)(1).

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23
primary purpose of a transaction is to
“evade or avoid” pension liability, a
pension fund may disregard the
transaction, and “liability shall be
determined and collected . . . without
regard to such transaction.” 29 U.S.C. §
1392(c). Notably, if an employer disputes
a pension fund’s determination that a
transaction was primarily conducted to
“evade or avoid” pension liability, the
employer must seek arbitration to resolve
this factual dispute before the court
proceeding may continue. 29 U.S.C. §
1401(a)(1); Flying Tiger Line, 830 F.2d at
1248. Once in arbitration, Congress
further tipped the scales in favor of
pension funds by granting a presumption
that any factual determination by the fund
is correct, unless the employer shows by a
preponderance of the evidence that the
fund’s finding was “unreasonable or
clearly erroneous.” 29 U .S.C . §
1401(a)(3)(A). The Supreme Court has
interpreted this language to place the
burden of persuasion on the employer
during arbitration to “disprove a
challenged factual determination by a
preponderance.” Concrete Pipes and
Prod ucts of California, In c. v .
Construction Laborers Pension Trust of
Southern California, 508 U.S. 602, 629
(1993).
II.
The Fund’s position in this case
may be boiled down to two arguments that
support its claim to collect pension liability
from the Defendant/Appellee Robert
Holmes (“Holmes”). First, as a factual
matter, the Fund asserts that Holmes
participated in a transaction intended to
“evade or avoid” pension liability. Thus,
as Congress provided in the MPPAA, the
Fund may disregard the transaction and
treat Holmes as a continuing member of
the control group. 29 U.S.C. § 1392(c).
Second, as a matter of law, the Fund
argues that because it brought a claim
against a member of the employer control
group in 1995, it has satisfied the MPPAA
statute of limitations, leaving the Fund free
bring the present suit against Holmes as an
action to enforce the 1995 judgment.
A.
Through a combination of stock and
trust, Holmes was the owner of Holmes
Transportation, Inc., (“HTI”), Kero
Leasing Corp. (“Kero”) and other related
personal proprietorships.20 In 1988,
Holmes transferred his interest in these
related companies to Route Resources, a
Canadian-owned holding company. The
Fund points to significant evidence in the
record indicating that Holmes’ transaction
was intended to evade pension liability.
For example, Holmes originally signed a
collective bargaining agreement with the
Teamsters Local Union No. 560 in May of
1985, constituting his initial personal
promise to make payments to the Fund.
20 The Fund is able to bring an action
against Holmes personally because he
operated proprietorships under common
control with Kero in his personal capacity
without corporate protection.

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24
Then, several months later in October of
1985, Holmes incorporated Kero and
assigned the ag reem ent (an d the
corresponding pension liability) to it. At
that point, Kero had no apparent assets
except the bare collective bargaining
agreement. In what may have been a
further attempt to isolate assets from
liabilities, the record indicates that Holmes
transferred a large piece of real estate in
Framingham, Mass., worth over $10
million, from HTI to himself personally in
December 1987, prior to conducting the
sale to Route Resources. Next, Holmes
transferred HTI’s remaining assets into
two shell corporations to facilitate the sale
to Route Resources. Kero’s stock, which
may be better characterized as the large
pension liability, was then transferred to
Route Resources separately from the
corporations now containing the assets.
Despite the sale, Holmes displayed
an initial intent to remain involved with
the companies through a fifteen year
management consulting contract worth
$4,725,000, which was included as part of
the sale agreement. Yet, the parties
walked away from the agreement after
only a single payment of $78,750 covering
three months of services. Not surprisingly,
a bankruptcy trustee appointed for the HTI
estate opined that the Route Resources
transaction “was made upon insufficient
consideration.” Trucking Employees of
North Jersey Welfare Fund, Inc. v. Route
USA Real Estate, Inc., No. 90-4489, slip
op. at 2 (D.N.J. May 23, 1991).
At some point in 1988, either
during the negotiation of the alleged sale
or soon after the transaction closed, Kero
and/or Route Resources stopped making
payments to the Fund. In July of 1989,
shortly after the execution of the purchase
agreement, Route Resources conveyed the
capital stock of HTI to Anthony
Matarozzo, the owner of Arrow Carrier,
Inc. Six months later, HTI filed a petition
in bankruptcy.
Almost immediately after Kero
stopped making pension payments, the
Fund did its best to follow this elusive
chain of ownership and serve notice of
withdrawal liability on the appropriate
parties as required under the MPPAA.
The Fund’s efforts included several notice
letters sent to Matarozzo from 1990
through 1992, as well as letters sent to
Route Resources and Kero Leasing at their
last known addresses. The Fund received
no response until 1992, when Matarozzo
finally informed the Fund that his purchase
of HTI from Route Resources did not
include Kero or Kero’s pension liability.
Thus, the Fund’s pursuit of Matarozzo
over a three year period was a red herring.
Interestingly, the District Court in this case
noted that when Anthony Matarozzo
eventually responded to the Fund, he was
in prison serving a sentence for theft from
a separate pension fund. Bd. of Trustees
of Trucking Employees of N. Jersey
Welfare Fund, Inc. - Pension Fund v. Kero
Leasing Corp., et al., No. 98-1476, slip op.
at 4 (D.N.J. Oct. 26, 1999).
While the actual determination of
whether this transaction was intended to

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25
“evade or avoid” pension liability is a
matter for arbitration, the claims presented
by the Fund and reinforced by the District
Cou rt facially support a factual
determination of evasive intent. This
determination should not be undermined
by Holmes’ dubious effort to invoke the
statute of limitations.
B.
After years of frustration from
chasing Kero’s phantom owners, the Fund
decided to switch tactics, retain new
counsel, and address the matter in court.
The Fund’s new counsel brought an action
in the U.S. District Court for the District of
New Jersey in April of 1995 against Route
Resources and its related companies to
collect the withdrawal liability, again
following the MPPAA procedures. Route
Resources did not respond to the
complaint, and the District Court awarded
the Fund a default judgment.
The Fund argues that because the
1995 suit was brought within the six-year
statute of limitations period under the
MPPAA, it satisfied the statute of
limitations as to all other entities in the
same control group, due to the “single
employer” principle. The Fund claims that
because the MPPAA allows the Fund to
treat all entities in a control group as a
single entity, there can be only one
judgment against that single entity. In
short, “judgment against one is judgment
against all.” Therefore, all future litigation
against other entities in the same control
group, even if postured as new claims
under the MPPAA, should be construed as
enforcement actions against the different
entities comprising the “single employer.”
The Fund believed that by bringing
an initial suit against one member of the
control group, it would satisfy the MPPAA
statute of limitations and provide further
time to investigate the complicated history
of private transactions to find other
resources to satisfy its judgment. The
Fund was justified in this belief because
courts in this circuit have consistently held
that this approach is permissible under the
MPPAA. Specifically, this same pension
fund was the plaintiff in two prior cases
before the New Jersey district court,
raising almost identical claims. In Bd. of
Trustees of Trucking Employees of N.
Jersey Welfare Fund, Inc. v. Gotham Fuel
Corp., 860 F.Supp. 1044, 1051 (D.N.J.
1993) and Bd. of Trustees of Trucking
Employees of N. Jersey Welfare Fund, Inc.
v. Able Truck Rental Corp., 822
F.Supp.1091, 1095 (D.N.J. 1993), Judges
Ackerman and Lifland, respectively, held
that under the MPPAA, members of a
control group are “statutory alter egos.”21
Thus, as courts have held in other “alter
ego” cases, Judges Ackerman and Lifland
determined that the Fund’s claims should
be “construed as actions to enforce
judgment” and will be considered timely
21 This argument should not be confused
with an alter ego claim brought under state
common law. The MPPAA’s “single
employer” provision makes members of a
control group “statutory” alter egos.

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26
“if the underlying action against the
corporation was timely and the subsequent
action to pierce the corporate veil to
enforce the judgment was brought within
the limitations period for enforcement of
judgments.” Able Truck, 822 F.Supp. at
1095 (emphasis added) (citing Wm.
Passalacqua Builders v. Resnik Developers
South, Inc., 933 F.2d 131 (2nd Cir. 1991)).
The use of the word “construed” is
noteworthy, as it shows a willingness
among the courts to read complaints
liberally when a plaintiff is seeking to
enforce a prior judgment under an “alter
ego” theory, or the statutorily analogous
“single employer” theory.
Although the complaints filed in
Able Truck and Gotham Fuel are not a part
of the record in this case, counsel for the
Fund certified at oral argument before us
that she was involved in those prior cases
on behalf of the Fund. She stated that in
those cases she filed substantially the same
complaint that she filed in the present case.
Based on counsel’s explanation, which is
further supported by the language of the
district courts in Gotham Fuel and Able
Truck “construing” the complaints as
actions to enforce judgment, it appears that
the complaints in all of these cases filed by
the Fund used the same terminology.
However, in the previous cases, the courts
were
persuaded that pursuant to the
single employer concept adopted by
the Third Circuit in Barker &
Williamson, supra, only one
withdrawal liability judgment can
exist against members of a
controlled group. Thus, it follows
that all subsequent actions against
different members of a controlled
group are actions to enforce the
judgment previously entered . . . .”
Able Truck, 822 F.Supp. at 1095. The
District Court opinion in the present case,
as affirmed by the majority here,
eviscerates the concepts set forth in Barker
& Williamson, and imposes a highly
technical pleading requirement that
frustrates the letter and the intent of the
MPPAA.
The majority here would prohibit
the Fund from collecting its debt partly
because it failed to adequately express the
magic words “enforcement of judgment”
in its complaint. However, even if this
court would impose a strict pleading rule,
requiring an explicit statement that an
action seeks to enforce a prior judgment
under ERISA, the complaint filed here by
the Fund arguably would meet that
requirement. The claim for relief pled all
of the factual predicates required for
enforcement of judgment, including
acknowledgment of the 1995 judgment
against Route Resources (paragraph 17), a
factual determination that Holmes
remained part of the control group due to
his evasive transaction (paragraph 24), and
a statutory basis for joint and several
liability for the judgment among all control
group members as required under the

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27
MPPAA (paragraph 31).22
The majority’s narrow view of the
pleading, coupled with an impractical
extension of the MPPAA statute of
limitations requiring that actions to enforce
an underlying judgment must also be
brought within a six-year period, severely
limits the purpose of the Act. I believe, in
agreement with the district courts in
Gotham Fuel and Able Truck, that the
Fund satisfied the MPPAA statute of
limitations when it brought the original
suit against Route Resources in 1995.
Therefore, under the applicable New
Jersey law, the twenty year statute of
limitations for enforcement of judgment
applies to the present suit to enforce the
1995 judgment. N.J. Stat. Ann. § 2A:14-5.
III.
The majority attempts to distinguish
Able Truck and Gotham Fuel on the facts
by noting that in those cases, membership
in the control group was conceded by the
defendants, while in the present case,
Holmes contests his control group status.
The majority further holds that because six
years expired prior to filing this suit
against Holmes, the Fund is now
prohibited from asserting that Holmes
remained a control group member because
his sale to Route Resources was intended
to evade or avoid liability, effectively
blocking the Fund from reaching Holmes’
assets. Both of these arguments miss the
mark.
A.
First, by distinguishing Able Truck
and Gotham Fuel based on Holmes’
dispute of his control group status, the
majority states in a footnote that it need
not decide the crucial issue of whether the
“single employer” theory requires that
“judgment against one is judgment against
all.” Yet, in my view, we cannot
effectively resolve this appeal without
deciding this crucial legal question.
The importance of resolving
22 In an attempt to justify its position
that this complaint cannot be read as an
enforcement action, the majority discusses
at length the legal steps taken by the Fund
that can be interpreted to show an intent to
pursue Holmes through a new action under
the MPPAA. I believe that the actions
referenced by the majority do not prohibit
the Fund from asserting that its current
action is intended to enforce the 1995
judgment. Rather, the multiple allegations
put forth by the Fund to describe its claim
against Holmes are better interpreted as
alternate legal theories that the Fund
pursued. Given the silence in the MPPAA
regarding enforcement of judgments that
we now attempt to resolve, and this
particular Fund’s past experience in
Gotham Fuel and Able Truck, it is not
surprising that the Fund pursued multiple
theories of liability. The Fund should not
now be penalized for its comprehensive
approach to this litigation, much of which
was initiated in response to the District
Court’s early rulings in the case.

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28
whether “judgment against one is
judgment against all” is highlighted by a
disagreement among several district courts
across the country. For example, both the
District Court opinion and the majority in
this case draw support from a case decided
in the Northern District of Illinois, Central
States, Southeast and Southwest Areas
Pension Fund v. Mississippi Warehouse
Corp., 853 F.Supp. 1053 (N.D. Ill. 1994).
Although the majority attempts to
distinguish Mississippi Warehouse from
Able Truck and Gotham Fuel on the facts,
even a cursory reading of Mississippi
Warehouse shows a fundamental legal
difference between these cases. The
district court in Mississippi Warehouse
plainly stated its disagreement with the
New Jersey cases and refused to adopt the
rule construing secondary suits as
enforcement claims under the “single
employer” theory, regardless of whether
the defendant conceded or contested
control group status.23 853 F.Supp. at
1058.
Furthermore, the majority’s effort
to distinguish the New Jersey district court
cases from Mississippi Warehouse and the
present case based on the defendants’
dispute of their control group status
produces an untenable legal anomaly. The
determination of whether a statute of
limitations bars a suit cannot be affected,
as the majority allows, by whether the
defendant concedes or denies liability in
the underlying suit. The operation of the
statute of limitations is a legal concept,
completely separate from the defendant’s
underlying defenses, or lack thereof. The
majority’s willingness to uphold a narrow
interpretation of the MPPAA statute of
limitations against those who concede
liability, and yet apply a broader
interpretation when the underlying liability
is disputed, confuses the issue and fails to
address the operative legal principle at bar.
The majority position essentially means
that if a defendant challenges his
underlying liability in an action to enforce
an MPPAA judgment, he can obtain the
benefit of an abbreviated statute of
limitations. Such a legal concept has no
basis in the law, nor should it.
B.
Second, the majority acknowledges
that the MPPAA requires disputes
involving the “evade or avoid” provision
to be resolved through arbitration. 29
U.S.C. §§ 1392(c), 1401(a)(1). However,
the majority adopts the non sequitur that
because the process for resolving the
“evade or avoid” issue is prescribed under
the MPPAA statutory framework, the six-
year statute of limitations also applies as a
bar to resolving this issue. There is
absolutely no support in the MPPAA or
the prior case law for this proposition, and
the majority cites to none.
The statute of limitations in the
23 The court in Mississippi Warehouse
only recognized the factual distinction
from the New Jersey cases in a footnote,
while discussing its disagreement on the
law extensively in the body of the opinion.
853 F.Supp. at 1058, n.2.

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29
MPPAA clearly refers to “action[s]
brought under this section.” 29 U.S.C. §
1451(f) (emphasis added). On the other
hand, the MPPAA’s arbitration provision
requires that “disputes between an
employer and the plan sponsor
. . . concerning a determination made
under sections 1381 through 1399 of this
title shall b e resolved through
arbitration.”24 29 U.S.C. § 1401(a)(1)
(emphases added). Section 1401(a)(1)
refers t o “ d is p u t e s” co ncern in g
“determinations” because the items in
sections 1381 through 1399 are all factual
determinations that the MPPAA entrusts to
the discretion of the Fund. These factual
determinations, such as whether a
transaction was intended to “evade or
avoid” liability, are not causes of action in
and of themselves subject to the MPPAA
statute of limitations. Rather, as the
Supreme Court acknowledged in Concrete
Pipes, they are “factual determinations” to
be resolved through arbitration before a
civil suit may proceed. 508 U.S. at 629.
The majority’s expansive application of
the statute of limitations covering not only
an original claim, but also the Fund’s
ability to make factual determinations
regarding an evasive transaction as part of
an effort to enforce judgment, is contrary
to a reasonable construction of the statute.
Also, it is contrary to this court’s
acknowledged duty to interpret ERISA and
the MPPAA liberally as remedial statutes.
Barker & Williamson, 788 F.2d at 127.
I believe that the majority
ultimately errs in its interpretation of the
MPPAA by treating the question of
whether Holmes can be considered a
member of the control group as the
threshold issue. The majority holds that
regardless of whether the statute of
limitations will be satisfied by a prior,
timely claim against a member of the
control group, this particular suit may not
proceed because the statute of limitations
bars the Fund from asserting that Holmes
is still a member of the control group
against whom the prior judgment may be
enforced. I believe that this approach is ill
advised, given the ability of employers in
close corporations to hide their evasive
intent behind a thicket of private
transactions that may take several years to
untangle, as occurred in this case.
Our review should be limited to the
legal question of whether the “single
employer” principle requires that a timely
claim against one control group member
satisfies the MPPAA statute of limitations,
leaving future actions against other control
group members to be governed by the
applicable state law statute of limitations
for enforcement of judgment. If, as I
suggest, the answer is affirmative, then the
current action should be allowed to
proceed as an enforcement suit. The
MPPAA would then require recognition of
the Fund’s factual determination that
Holmes should be treated as a member of
the control group because his sale was
24 The “evade or avoid” provision, 29
U.S.C. 1392(c), falls within the applicable
range of sections 1381 through 1399,
thereby designating it as a determination
subject to arbitration.

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30
primarily intended to “evade or avoid”
liability. If Holmes wishes to dispute that
factual finding, he may do so in
arbitration, as required under the MPPAA,
before the claim proceeds in the District
Court. Flying Tiger Lines, 830 F.2d at
1248.
IV.
The majority contends that allowing
this suit to proceed against Holmes in such
a “belated” manner would be somehow
unfair to Holmes, given that he sold his
companies in 1988 and retired to Florida.
This approach punishes the Fund for its
investigation and delayed legal action,
despite evidence that Holmes and Route
Resources may have engineered a scheme
designed to conceal assets from the Fund
and obstruct detection of the culpable
entities. Our court has held on several
occasions that factual determinations
regarding evasive transactions are left for
pension funds and arbitrators to decide.
The Fund’s factual determination should
not be disregarded by granting summary
judgment on the basis of an affirmative
defense. Such a decision denies the Fund
the opportunity set forth in the Act to
challenge evasive and fraudulent
transactions and transfers. We need only
verify that Holmes was a member of the
control group at some time prior to
withdrawal from the Fund, and leave the
resolution of this factual dispute to
arbitration. See Bd. of Trustees of
Trucking Employees of N. Jersey Welfare
Fund, Inc. – Pension Fund v. Centra, 983
F.2d 495, 501 (3d Cir. 1992). This court
should limit its inquiry to the legal
question of whether the MPPAA statute of
limitations bars this suit. To that end, the
majority has fashioned a six-year time
limit that applies to a pension fund’s
original suit on the underlying claim, as
well as all efforts to enforce a judgment
against entities later determined to be
members of the control group. Such a rule
encourages employers to impede the
collection of monies lawfully due pension
funds and negates the arbitration
provisions of the MPPAA for the factual
determinations of whether members of the
control group engaged in evasive and
fraudulent schemes. The MPPAA never
intended such a result. Furthermore, the
majority’s rule is based, in part, on the
unsupportable ground that it applies only
to situations where a defendant disputes
control group status that has not yet been
conclusively determined by a court or
arbitrator. As a result, the majority
establishes an illusory dichotomy that
avoids the operative legal issue.
I would affirm this circuit’s line of
MPPAA cases by following the precedent
set in Barker & Williamson. I would hold
that judgment against one control group
member shall be deemed judgment against
all, construe the Fund’s claim as an action
to enforce the 1995 judgment, vacate the
summary judgment against the Fund in this
proceeding, and remand the case to the
District Court for further proceedings

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31
consistent with this opinion.25
25 Because my analysis of this case
would vacate the District Court judgment,
I do not reach the issue of whether Holmes
is entitled to interest payments and
attorneys’ fees

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