Rti Restoration Technologies, Inc.; Industrial Maintenance Industries, LLC v. International Painters and Allied Trades Industry Pension Fund

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 24-2874
_______________
RTI RESTORATION TECHNOLOGIES, INC.;
INDUSTRIAL MAINTENANCE INDUSTRIES, LLC
v.
INTERNATIONAL PAINTERS AND ALLIED TRADES
INDUSTRY PENSION FUND,
Appellant
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:22-cv-02364)
District Judge: Hon. Jamel K. Semper
_______________
Argued: November 3, 2025
_______________
BEFORE: PHIPPS, ROTH, and RENDELL, Circuit Judges.
(Filed: March 3, 2026)

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Neil J. Gregorio, Esq.
Brian A. Pepicelli, Esq. [ARGUED]
Tucker Arensberg
One PPG Place
Suite 1500
Pittsburgh, PA 15222
Counsel for Appellant
Eric Magnelli, Esq. [ARGUED]
Brach Eichler
101 Eisenhower Parkway
Roseland, NJ 07068
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
RENDELL, Circuit Judge.
The International Painters and Allied Trades Industry
Pension Fund (“Fund”), a multi-employer pension plan fund,
sought to collect “withdrawal liability,” 29 U.S.C.
§ 1381(b)(1), from Industrial Maintenance Industries LLC and
RTI Restoration Technologies, Inc. (“Companies”) as
successors to a defunct contributing employer under the
Multiemployer Pension Plan Amendments Act of 1980
(“MPPAA”), 29 U.S.C. § 1001, et seq. The Companies
responded by seeking a declaratory judgment in federal court
that they were neither directly liable to the Fund nor liable

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under any successor theory. The Companies also urged that
even if liable, the Fund’s failure to demand payment promptly
resulted in prejudice such that the Fund’s claim was barred by
the doctrine of laches.
Although the District Court concluded that genuine
issues of material fact precluded summary judgment as to
liability, it nevertheless granted judgment to the Companies
because the Fund’s failure to act “[a]s soon as practicable” in
notifying the companies of the withdrawal liability doomed its
claim under the MPPAA, 29 U.S.C. § 1399(b)(1). This result,
the District Court reasoned, was consistent with this Court’s
opinion in Allied Painting and Decorating, Inc. v. Int’l Painters
and Allied Trades Indus. Pension Fund, 107 F.4th 190 (3d Cir.
2024).
The Fund asks us to vacate the District Court’s order
and urges that the issue of whether the Fund could state a cause
of action given the Fund’s failure to comply with the MPPAA’s
“as soon as practicable” requirement was waived. It contends
that, under the scheme of the MPPAA, the issue should have
been, and can only be, determined by an arbitrator. As the issue
was never submitted to arbitration, the Fund reasons, and the
time for seeking arbitration has passed, the Companies have
waived the issue. The District Court, the Fund’s argument
continues, thus had no authority to resolve the case on that
ground. We disagree and, therefore, we will affirm.
I.
Under the terms of a 1998 collective bargaining
agreement between Coating Technologies, Inc. (“CTI”) and the
International Union of Painters and Allied Trades District

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Council 711 (“Union”), CTI was required to contribute to the
Fund on behalf of its covered employees. It made its
contributions until it closed in 2013. That year, the IUPAT
Health and Welfare Funds (“IUPAT Funds”), sued CTI and its
owners, including a company officer named Robert Gagliano,
to collect delinquent contributions. In 2015, the case settled
with the entry of a consent judgment.
Gagliano was at various times a business partner, an
employee, and part-owner of the Companies, which were
founded in 2011 and 2013. So, in connection with efforts to
enforce the consent judgment against CTI, the Union and the
IUPAT Funds had repeated contact with RTI and IMI “because
of Robert Gagliano’s involvement.” JA23. In 2015, the
consent judgment was satisfied. And in 2018, Gagliano died.
Three years after Gagliano’s death, eight years after CTI
went out of business, and six years after the IUPAT Funds
successfully collected delinquent contributions from CTI, the
Fund decided that CTI owed withdrawal liability under the
MPPAA. In July 2021, the Fund, for the first time, notified the
Companies of the purported liability. By letter, the Fund
asserted that it had “determined that [CTI] and [the Companies
were] under common control . . . [and] had a complete
withdrawal from the . . . Fund . . . during the 2013 Plan year.”
JA133 (emphasis added). And “[b]ased on December 31, 2012
data . . . [the Companies’] single sum share of unfunded vested
benefit liability . . . is $800,445.” JA133 (emphasis added).
The Companies denied liability explaining that
“RTI/IMI has never been a signatory to a Collective Bargaining
Agreement with the . . . Union . . . and never agreed to make
contributions to the Fund.” JA110. Moreover, “neither RTI

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nor IMI are under common control with CTI . . . . [and] for
RTI/IMI to be liable for CTI’s . . . withdrawal . . . a control
group relationship must exist.” JA110. Negotiations between
the parties failed to resolve the dispute. Rather than seeking
arbitration, the Companies filed suit in federal court.
The Companies sought a “declaratory judgment that
[they]: (i) are not ‘employers,’ . . . ; (ii) are not a ‘contributing
business’ or a business under ‘common control’ with third-
party [CTI]; (iii) are not a successor to, alter ego of, joint or
single employer with, and/or part of controlled group of
entities with CTI; and therefore; (iv) are not liable under
ERISA for the alleged withdrawal liability of CTI.” JA37. The
Fund answered the Complaint and filed a Counterclaim
seeking to collect the withdrawal liability.
In its Counterclaim, the Fund alleged that the
Companies not only owed CTI’s withdrawal liability as its
successors, but also owed “collateral damages” and interest
associated with purportedly delinquent payments on the
principal amount. JA57-58. It further alleged that these
damages and interest resulted by operation of law because the
Companies “did not demand arbitration against the Fund under
29 U.S.C. § 1401(a)(1) . . . [before] the deadline for them to do
so expired on January 23, 2022.” JA58.
Later, the parties submitted cross-motions for summary
judgment. The Companies argued that summary judgment was
appropriate for two reasons. First, the Fund failed to adduce
evidence that the Companies were alter egos of, or successors
to, CTI or otherwise employers as defined under ERISA.
Second, even if the Fund could establish liability, its
dilatoriness in notifying the Companies of the withdrawal

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liability resulted in prejudice and, thus, the Fund’s claim was
barred by laches.
The Fund, by contrast, urged that evidence showed the
Companies were liable under both an alter ego theory and a
successor theory.1 Laches, the Fund argued, did not apply
because in choosing to challenge the threshold question of
whether the Companies are “employers” under the MPPAA
rather than demanding arbitration, the Companies waived any
argument as to the timeliness of the Fund’s notice and demand
for withdrawal liability. Even if laches applied, the Fund
urged, its dilatoriness was excusable because of the complex
procedure it chose to employ to determine withdrawal liability.
See D.C. CM/ECF No. 50 at 16-17 (describing the Fund’s
struggle to track “the large volume of employers,” and
admission that it took at least two years from when “CTI
appeared on [its] . . . inactive list” before “counsel . . .
ultimately . . . recommended that the Fund issue an
assessment” due to a “backlog” in its system).
Before the District Court ruled on the cross-motions,
however, we decided Allied, 107 F.4th 190, which involved the
same fund at issue in this case and a similar procedural issue.2
In that case, we held that a pension fund cannot collect on a
claim for withdrawal liability unless three requirements have
been met: (1) an employer has withdrawn from a plan; (2) the
fund has notified the employer of its assessment of withdrawal
1 The Fund withdrew its claim of liability against the
Companies under a “common control” theory. JA15 n.2.
2 Indeed, the Fund was represented by the same firm and some
of the same attorneys in Allied. Compare Allied, 107 F.4th at
192 (listing the Fund’s counsel) with Fund’s Brief 29.

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liability “as soon as practicable;” and (3) the employer has
defaulted on a payment “due and payable.” Id. at 197. As for
the second of these prerequisites—the “as soon as practicable”
element—we noted that while generally a “flexible”
requirement, id., “diligence is what the [MPPAA] requires,” id.
at 193. Thus, we concluded that where a pension fund failed
to demand withdrawal liability from a purported contributing
employer within twelve years of an employer’s withdrawal, the
fund could not recover because it had not acted “as soon as
practicable.” Id.
Two months after our decision in Allied, the District
Court granted judgment in favor of the Companies. At the
outset of its opinion, the District Court found genuine issues of
material fact precluded judgment on the question of whether
the Companies were employers.3 However, it nevertheless
granted summary judgment to the Companies, “not . . . based
upon the doctrine of laches,” as the Companies had urged in
their brief, but “instead based upon [an independent ground,
i.e.,] the Fund’s failure to provide notice of its withdrawal
liability assessment and demand payment from Plaintiffs ‘as
soon as practicable’ following the employer’s withdrawal per
29 U.S.C. § 1399(b)(1).” JA22. In reaching this result, the
District Court relied on our opinion in Allied, 107 F.4th 190,
3 See JA18 (“record evidence creates a dispute of material fact
as to whether RTI/IMI and CTC may be treated as a ‘single
integrated enterprise’”); JA20 (“the Court determines that the
evidentiary records before it raise issues of fact as to the
identity of ownership between RTI/IMI and CTC,” under an
alter ego theory); JA21 (“the Court determines that there are
genuine issues of material fact that preclude granting a motion
for summary judgment for either Plaintiffs or the Fund”).

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and cited our observation that “the ‘as soon as practicable
requirement . . . is an independent statutory requirement’” such
that the failure to meet that requirement forecloses a pension
fund’s right to recover. JA23.
The District Court identified two important undisputed
facts, which supported its conclusion. It wrote:
Within the five-year period after CT[I] went out
of business and stopped remitting contributions
to the Fund (2013-2018), the following occurred:
(1) in 2013, the IUPAT Welfare Fund initiated
a lawsuit against CT[I] for unpaid welfare
fund contributions . . . ; and
(2) from 2015 through 2017, the . . . Union . .
. w[as] in repeated contact with RTI and
IMI purportedly because of Robert
Gagliano’s involvement with the
companies and CT[I]’s still unpaid
delinquent contributions.
JA23. So, the District Court reasoned “[b]ased upon the record
evidence, as of 2013, the Fund had all the requisite information
available to be aware that CT[I] withdrew from the Fund and
RTI/IMI were operational (with Gagliano’s involvement as of
2015).” JA24. Despite this information, and in stark contrast
with the IUPAT Funds’ timely actions, the Fund failed to
demand liability from the Companies until 2021. This “8-year
delay in determining a withdrawal was not in compliance with
the statutory framework,” the District Court concluded. JA24.
Indeed, “this 8-year delay . . . ran directly contrary to the

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Fund’s statutory obligation pursuant to 29 U.S.C. § 1399(b)(1)
and the Allied decision.” JA24.
As the failure to act as soon as practicable is an
independent legal predicate to recovery, the Court further
reasoned, it mattered not whether the Companies raised the
issue in arbitration or raised it in court as part of a declaratory
judgment action, or whether the court, as it did in this case,
raised the issue sua sponte. JA22-23, 23 n.5. That is, while the
defense of laches is an affirmative defense subject to waiver,
whether the Fund acted as soon as practicable in demanding
withdrawal liability is not. Drawing on Allied, the Court held
that it is a separate independent requirement that the Fund must
prove, and thus the District Court rejected the Fund’s “waiver”
argument.
The District Court also rejected the Fund’s alternative
argument that even if the Companies had not waived its
challenge to the timeliness of the demand, the eight-year delay
in notifying the Companies of their withdrawal liability was
excusable in the context of a laches defense. In its view, the
Fund failed to show excusable delay for two main reasons.
First, the Fund had all the necessary information to
identify CTI’s withdrawal by no later than 2013. Although the
Fund urged it could not have known about the withdrawal
liability before 2021, the District Court noted the inconsistency
in the Fund’s position. See, e.g., D.C. CM/ECF No. 50 at 16
(admitting that “CTI appeared on [the Fund’s] five-year
inactive list [by] 2019” but failing to act until two years later).
In staking out this position, the Court observed, the Fund was
attempting simultaneously to “downplay its knowledge
regarding CT[I]’s withdrawal,” while relying on that

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knowledge to “impute . . . [liability for] withdrawal on [the
Companies].” JA24.
Second, the District Court reasoned that “the Allied
decision . . . dealt with the same lengthy procedure” that the
Fund employed in this case to determine withdrawal liability,
which was found not to justify the Fund’s delay in demanding
liability from the contributing employer. JA24. As the process
at issue in Allied did not support a finding of excusable delay,
the same process could not support a finding of excusable
delay in this case. JA24.
The Fund appealed.
II.4
The issue on appeal involves the statutory scheme of the
MPPAA, primarily its requirement that disputes regarding the
determination of the withdrawal liability are subject to
arbitration following notice to, and demand by, the
contributing employer.
A.
As the Supreme Court has explained, “Congress
enacted the MPPAA to protect the financial solvency of
multiemployer pension plans.” Bay Area Laundry and Dry
Cleaning Pension Trust Fund v. Ferbar Corp., 522 U.S. 192,
196 (1997) (citing Milwaukee Brewery Workers’ Pension Plan
4 The District Court had jurisdiction under 29 U.S.C. § 1451(c)
and 28 U.S.C. § 1331. This Court has jurisdiction under 28
U.S.C. § 1291.

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v. Jos. Schlitz Brewing Co., 513 U.S. 414, 416-17 (1995)). To
that end, “[t]he statute requires most employers who withdraw
from underfunded multiemployer pension plans to pay
‘withdrawal liability.’” Id. (citing 29 U.S.C. § 1381(a)). “[A]n
employer incurs withdrawal liability when it effects a
‘complete withdrawal’ from the plan.” Id. Upon an
employer’s withdrawal from a pension plan, the burden of
calculating the amount of withdrawal liability falls on the
plan’s trustees. Id. at 197. Although the trustees are afforded
great latitude in doing so, the MPPAA requires “diligence.”
Allied, 107 F.4th at 193. Thus, “as soon as practicable” after
an employer’s withdrawal, the plan’s trustees must “set an
installment schedule and demand payment” from the former
contributing employer. Bay Area, 522 U.S. at 197 (citing 29
U.S.C. § 1399(b)(1)).
Upon “receipt of the trustees’ schedule and payment
demand, the employer may invoke a dispute resolution
procedure that involves reconsideration by the trustees and,
ultimately, arbitration.” Id. “Any dispute between an
employer and the plan sponsor . . . concerning a determination
made under sections 1381 through 1399 . . . shall be resolved
through arbitration.” 29 U.S.C. § 1401(a)(1) (emphasis
added). The time to request arbitration under the statute
varies,5 but may be “jointly initiate[d] . . . within the 180-day
period after the date of the plan sponsor’s [notice and] demand
under section 1399(b)(1).” 29 U.S.C. § 1401(a)(1). “If no
party requests arbitration, the installments become ‘due and
5 See, e.g., 29 U.S.C. § 1401(a)(1) (providing different times
to demand arbitration based on whether the employer first
seeks review by the demanding fund and whether the fund
provides a response).

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owing.’” Bay Area, 522 U.S. at 197. “Should the employer
fail to pay . . . the plan may . . . . sue to collect the unpaid debt,”
id., “in a State or Federal court,” 29 U.S.C. § 1401(b)(1).
We have observed that the MPPAA expresses a “clear
preference for self-regulation through arbitration” while
providing “for judicial review in the event that arbitration
failed to resolve the controversy.” Republic Indus., Inc. v.
Cent. Pa. Teamsters Pension Fund, 693 F.2d 290, 294-95 (3d
Cir. 1982). But we have “held that under [the] MPPAA[,] there
is no per se exhaustion requirement under which the court
lacks jurisdiction to hear cases that have not first been before
an arbitrator.” Dorn’s Transp., Inc. v. Teamsters Pension Fund,
787 F.2d 897, 903 (3d Cir. 1986) (citing Republic Indus., 693
F.2d at 295-96). Thus, as discussed in greater detail below, we
have recognized that arbitration may be “bypassed” in the “rare
case in which there [i]s no need for the development of a
factual record.” Dorn’s, 787 F.2d at 903. And, presumably, the
factual record that an arbitrator would consider would center
on the “determination” made regarding withdrawal liability.
B.
The Fund frames the issue on appeal as “[w]hether the
District Court erred in granting summary judgment to the . . .
Companies based on a defense that is subject to arbitration . . .
and that the . . . Companies waived by failing to first pursue [it]
in that forum.” Fund’s Br. 4. To support its position that the
District Court erred, the Fund relies on a series of cases in other
circuits where a failure by an employer to demand arbitration
upon notification of a pension plan’s demand for withdrawal
liability was deemed a waiver of any challenge as to the

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timeliness of the notice. But there are at least three problems
with the Fund’s argument.
First, the Fund presumes that any issue regarding the
timeliness of a fund’s notice and demand is a “defense” subject
to “waiver.” The Fund seems to conflate the timeliness
requirement with an equitable defense of laches. But it is more
than that after Allied. It is an independent statutory
requirement.
Second, the out-of-circuit cases on which the Fund
relies are distinguishable.
And third, the Fund does not urge, nor could it, that the
District Court lacked the authority to address the issue of the
timeliness of its notice and demand under our existing
precedent.6 Instead, the Fund only vaguely claims that the
District Court “erred” in addressing the “as soon as
practicable” requirement, which it contends can only be raised
in arbitration. Fund’s Br. 4. But our precedent supports the
District Court as the appropriate tribunal to consider the
Companies’ complaint as well as its ruling.
i.
6 The Fund concedes the District Court properly had
jurisdiction by seeking to reverse the District Court’s order on
the “as soon as practicable” ground but otherwise not seeking
to disturb the District Court’s conclusion that genuine issues of
material fact prohibit judgment on whether the Companies are
employers.

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We first reject the gloss that the Fund has placed on the
issue presented in this case to the extent that it is premised on
the idea that the “as soon as practicable” requirement is an
affirmative “defense” subject to “waiver.” We have never so
held, and, indeed, our precedent undermines the Fund’s
position.
In Allied, we affirmed the district court’s order vacating
an award in favor of the Fund based on the “as soon as
practicable” requirement despite the issue never having been
raised in the proceedings below. 107 F.4th at 195. We will
discuss Allied more fully below, but we note that we rejected
the notion that the employer needed to show prejudice to
succeed based on delay. We sua sponte addressed whether the
Fund acted “as soon as practicable” under § 1399(b)(1)
because it “is an independent statutory requirement.” Id. at
199. Ultimately, we instructed that compliance with the
requirement is a sine qua non of a successful claim for
withdrawal liability because it is “one of the elements of the
MPPAA.” Id. at 198. That the provision of notice and demand
“as soon as practicable” is an essential element of the claim for
liability, we reasoned, flowed naturally from the Supreme
Court’s teaching in Bay Area regarding the statute of
limitations. Id. at 196.
There, the Supreme Court explained that the statute of
limitations for a claim of withdrawal liability begins to run “not
when the employer withdraws from the fund . . . but when the
employer defaults on an installment ‘due and payable’
following the fund’s notice and demand.” Id. (emphasis
added). This is because limitations periods begin when “the
plaintiff has a ‘complete and present cause of action.’” Bay
Area, 522 U.S. at 195 (quoting Rawlings v. Ray, 312 U.S. 96,

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98 (1941)) (emphases added). And only when the fund has
provided notice and demand “as soon as practicable,” does
claim for withdrawal liability accrue.
The Fund seizes upon dicta in Bay Area to support a
sweeping proposition that the question of whether an employer
has complied with the “as soon as practicable” requirement can
be raised only in the form of an affirmative laches defense in
arbitration. The language—namely, where “an employer
believes the trustees have failed to comply with their ‘as soon
as practicable’ responsibility, the employer may assert that
violation as a laches objection at an arbitration”—is
persuasive, not mandatory. Bay Area, 522 U.S. at 205. This
statement is meant to emphasize the notion that fund trustees
should be diligent in making a demand on the employer.
Moreover, we have already written about this passage from
Bay Area and have explicitly recognized that it is “dicta.”
Allied, 107 F.4th at 197.
We have previously explained that “Bay Area resolved
only the issue of how to read the time limitation on filing a suit
under the MPPAA.” Id. (emphasis added). And “[t]he
reference to laches comes in that context.” Id. (emphasis
added). The Supreme Court discussed a laches defense as “a
potential defense to a suit brought within the six-year statute of
limitations from when the employer defaults on a payment.”
Id. (emphasis added). The Supreme Court did not say, contrary
to the Fund’s urging, that the issue of whether a fund has
complied with the “as soon as practicable” requirement can
only be raised in connection with a laches defense at
arbitration.

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Indeed, we have criticized the view, taken by some out-
of-circuit district courts, that “laches is the required vehicle to
challenge timeliness of the withdrawal-liability notice and
demand.” Allied, 107 F.4th at 197 n.15 (emphasis in the
original) (rejecting the idea that laches is the only means of
addressing timeliness, which is the view taken by the U.S
District Courts for the Middle District of Tennessee and the
Eastern District of New York in PACE Indus. Union-Mgmt.
Pension Fund v. Troy Rubber Engraving Co., 805 F. Supp. 2d
451, 464 (M.D. Tenn. 2011), and Pavers & Rd. Builders Dist.
Council Pension Fund by Montelle v. Nico Asphalt Paving,
Inc., 248 F. Supp. 3d 374, 380 (E.D.N.Y. 2017)). At bottom,
laches is one vehicle for challenging timeliness, but it is not the
exclusive means by which alleged delay may be addressed, nor
is it the lens through which the “as soon as practicable”
requirement should be viewed.
ii.
The Fund cites the Eighth Circuit’s opinion in Vaughn
v. Sexton, 975 F.2d 498 (8th Cir. 1992), which predated the
Supreme Court’s decision in Bay Area, to support its view that
compliance with the “as soon as practicable” requirement of
the MPPAA is a waivable defense. But Vaughn does not
advance the Fund’s cause insofar as the Eighth Circuit was
considering laches as a defense, nor did it mention, let alone
consider, the “as soon as practicable” requirement as such.
There, an employer withdrew from a pension fund in
1984. Vaughn, 975 F.2d at 500. Four years later, the fund
notified the employer of its outstanding withdrawal liability.
Id. The following year, the fund sued the employer in federal
court seeking to collect on the withdrawal liability. Id. The
district court concluded that “because the [employer] had never

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requested arbitration, they had waived their right to assert
laches as a defense to payment.” Id. at 501 (emphasis added).
On appeal, the employer argued that “the question of
unreasonable delay is one requiring statutory interpretation and
is therefore not suitable for resolution by an arbitrator rather
than a court.” Id. The fund, however, countered that “the
essence of the laches claim—that the trustees did not notify the
defendants ‘as soon as practicable,’ . . . after the withdrawal . .
. is a factual dispute and therefore within the purview of matters
amenable to resolution by an arbitrator.” Id. (emphasis added).
The Eighth Circuit agreed with the fund. It wrote: “We
believe that the question of whether the pension plan trustees’
delay was unreasonable is a factual one that could have been
raised by the defendants at the time they could have requested
arbitration. We hold, accordingly, that by their failure to
request arbitration they have waived it as a defense to
payment.” Id. (emphasis added). Thus, the issue before the
Eighth Circuit was whether the equitable defense of laches is
waivable, not whether the fund complied with the “as soon as
practicable” requirement. To the extent that Vaughn can be
read to support the Fund’s position that the “as soon as
practicable” requirement can be waived, it conflicts with the
Supreme Court’s teaching in Bay Area that the Fund’s claim
does not even accrue until timely notice and demand has been
made.
Beyond Vaughn, the Fund cites a string of out-of-circuit
cases to support its argument that compliance with the “as soon
as practicable” requirement may only be raised in the form of
a defense at arbitration, but these cases are also distinguishable.

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The Fund, for example, urges that the Court of Appeals
for the District of Columbia Circuit in Joyce v. Clyde Sandoz
Masonry, 871 F.2d 1119, 1126-27 (D.C. Cir. 1989), and the
First Circuit in Giroux Bros. Transp. v. New England Teamsters
& Trucking Indus. Pension Fund, 73 F.3d 1, 3-4 (1st Cir. 1996),
have “provid[ed] that this [as soon as practicable] defense is
clearly subject to arbitration in the first instance.” Fund’s Br.
27. The Fund mischaracterizes both opinions.
Joyce involved “a single issue of statutory
interpretation: What acts or omissions trigger . . . [the] time
bar . . . applied to efforts to collect withdrawal liability?” 871
F.2d at 1122. It did not involve the question of whether the “as
soon as practicable” requirement is a defense nor whether a
pension plan’s compliance with the requirement can be
determined only through arbitration. And while the court
ultimately remanded the case to be considered by an arbitrator,
it did not rule that arbitration was required in all instances.
Instead, it echoed our own observation in Republic Indus., 693
F.2d at 294-95, that the MPPAA “favors arbitration” and that
disputes “should be conducted initially before an arbitrator”
when “practicable,” Joyce, 871 F.2d at 1127 (emphasis added).
Giroux, like Vaughn, predates the Supreme Court’s
opinion in Bay Area, and is factually distinguishable in so
many ways that it deserves little discussion. An arbitrator had
already entered an award against the employer. Giroux, 73
F.3d. at 2. Given the posture of the case, the court deferred
judgment on the employer’s alternative argument regarding the
timeliness of the fund’s notice and demand until such time as
there was a direct appeal from the arbitrator’s award. Id. at 4.
In so deciding, the First Circuit noted that the MPPAA’s
“arbitration provision is an exhaustion of administrative

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remedies requirement, rather than a jurisdictional bar.” Id. at
4.
As for the remaining out-of-circuit district court cases
cited by the Fund in a footnote, see Fund’s Br. 27 n.4, each is
distinguishable in that the courts in those cases viewed the “as
soon as practicable” requirement as essentially merged with or
“subsumed by [the] laches defense,” Pavers, 248 F. Supp. 3d
at 380. But as discussed in connection with Bay Area above,
we have already parted ways with this view. Allied, F.4th at
197 n.15.
But reliance on Vaughn, and the cases cited by the Fund,
is even more problematic because in those cases, unlike here,
it was essentially undisputed that the business organizations
from which the pension fund demanded withdrawal liability
were “employers” who, presented with notice and demand for
payment under the MPPAA, were required to seek arbitration
to challenge the “determination.” Vaughn, 975 F.2d at 500
(“the pension plan trustees demanded payment . . . from [the
stockholders of the contributing employer]”). But it cannot
and does not control the situation where the demand is made of
entities that contend they are not liable as an employer. This
distinction is key.
We have clearly held that cases in which a party’s status
is unclear may first be submitted to a court to determine the
employer’s status. See, e.g., Flying Tiger Line v. Teamsters
Pension Tr. Fund of Phila., 830 F.2d 1241, 1251 (3d Cir. 1987)
(citing Banner Indus., Inc. v. Cent. States, Se. & Sw. Areas
Pension Fund, 657 F. Supp. 875, 882 (N.D. Ill. 1987)); see also
IUE AFL-CIO Pension Fund v. Barker & Williamson, Inc., 788
F.2d 118, 127 (3d Cir. 1986) (noting that “[i]f [a] corporation

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20
legitimately believes its status as a controlled group member is
doubtful, it could bring a declaratory judgment action to have
that question resolved by a federal court[, which could] enjoin
the running of the statutory period for seeking review and
arbitration”).7
So, if all the Companies had to support their position
was the fact that other cases were distinguishable because they
focused on laches and involved employers who are required to
opt for arbitration, our path to affirmance would be more
inferential than clear cut. But our recent opinion in Allied takes
the notice and demand “as soon as practicable” requirement to
a new level that dictates that the District Court here got it right.
A closer examination of Allied is in order.
Allied, a painting company owned by Robert Smith,
“signed an agreement” with a union requiring Allied to
contribute pension benefits payments to the same Fund at issue
in this case. Allied, 107 F.4th at 193. Several years later, Allied
went out of business, but submitted reports to the union
showing that it had not used union labor and, thus, had no
obligation to contribute to the Fund. Id. Smith, however, went
on to establish a new company called Allied Construction
Management. Id.
7 The Dissent assumes without any reasoning that the dispute
between the Fund and the Companies was a dispute
“concerning a determination made” under the relevant
sections. But it was not. The dispute involved the Companies’
status as an employer and clearly, under Flying Tiger, that type
of dispute can be brought in court.

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21
Under the MPPAA, where a former employer resumes
work after the expiration of an obligation to contribute to a
plan, the resumption of work may result in withdrawal liability.
29 U.S.C. § 1383(b)(2). This feature of the MPPAA exists to
“eliminate the incentive to pull out of a plan,” which could
destabilize the fund and jeopardize the payment of benefits to
the plan participants. SUPERVALU, Inc. v. Bd. of Trs. of Sw.
Pa. and W. Md. Area Teamsters and Emps. Pension Fund, 500
F.3d 334, 336 (3d Cir. 2007)). So, the burden fell to the Fund
to determine whether “Allied’s return to painting potentially
triggered withdrawal liability.” Allied, 107 F.4th at 194.
Twelve years after Allied made its last payment to the
Fund, the Fund delivered to Allied a notice and demand for
payment of withdrawal liability. Id. The Fund’s delay in
issuing this notice and demand was due to its failure to
“rigorously track, much less assess, employer withdrawals,”
which resulted in “a backlog of hundreds of cases.” Id. Even
in the face of this backlog, “investigations moved slowly,” so
that “while Allied’s potential liability came to the Fund’s
attention in 2011,” the Fund did not provide its notice and
demand until six years later. Id.
In response to the Fund’s demand, Allied requested
review and demanded arbitration under 29 U.S.C.
§ 1401(a)(1). Before the arbitrator, Allied raised an affirmative
defense of laches urging that “by the time the Fund notified
Allied of its withdrawal liability . . . Allied had no records . . .
having purged its records . . . . [a]nd . . . anyone with personal
knowledge about the matter was no longer employed or . . .
identifiable.” Id. But the arbitrator rejected this laches defense
concluding that while the Fund failed to “act ‘as soon as

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22
practicable’ in issuing a notice and demand to Allied . . . . Allied
had failed to establish severe or material prejudice” resulting
from that delay. Id. at 194-95. “On appeal, the District Court
found that Allied was prejudiced by the delay and vacated the
Award.” Id. at 195. The Fund appealed and we affirmed the
vacatur of the award, “though on [a] different ground[],” raised
sua sponte on appeal.
We affirmed on the independent ground that “the Fund
did not act ‘as soon as practicable’ when it provided notice of
Allied’s withdrawal liability and demanded payment twelve
years after Allied’s obligation to contribute to the Fund
ceased.” Id. at 196. This fact “ends th[e] matter.” Id. To
reach this conclusion, we began with “the usual task of giving
effect to Congress’s directive by looking first to the text of the
law.” Id. at 197. We observed that under the text of the
MPPAA, “for a fund to assert a withdrawal-liability claim,” it
must take three steps:
Step One: The employer must withdraw from
the plan.
Step Two: “As soon as practicable” after
withdrawal, the fund must A) provide notice to
the employer of its withdrawal-liability
assessment and B) demand payment from the
employer.
Step Three: The employer must default on a
payment “due and payable.”
Id. (citations omitted). “Until [each] step is taken, the
employer has not ‘violated an obligation owed the [fund] under

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23
the [MPPAA],’ and the fund’s ‘interest in receiving withdrawal
liability does not ripen into a cause of action.’” Id. As for the
notice and demand requirement in particular, we noted that
“[n]either the statute nor Bay Area requires employers to prove
prejudice . . . . [because] [i]f a fund does not issue its demand
‘as soon as practicable,’ then it has not satisfied one of the
elements of the MPPAA.” Id. at 197-98 (emphasis added).
That the statute required no prejudice be proven, we continued,
distinguished the “as soon as practicable” requirement from “a
laches defense.” Id. at 198. The “prompt delivery of notice
and payment demand [i]s a predicate to suing.” Id. And the
Fund’s failure to deliver notice and demand promptly was fatal,
as a matter of law, to its suit regardless of whether Allied
proved that the delay had prejudiced it.
Given the way we have emphatically stated that timely
notice and demand is one of three elements necessary to even
give rise to a cause of action for withdrawal liability, query
whether it was intended to be an issue for arbitration. The
MPPAA states that a “determination made under sections 1381
through 1399 . . . shall be resolved through arbitration.” 29
U.S.C. § 1401(a)(1). Sections 1381 through 1399 repeatedly
use the word “determine” and “determination” in reference to
the amount of liability and how and when the liability is to be
paid.8 The determinations with which § 1401 is concerned
8 See, e.g., 29 U.S.C. § 1381(b) (referring to the “amount
determined . . . to be the allocable amount of unfunded vested
benefits”); 29 U.S.C. § 1382 (requiring the “plan sponsor” to
“determine the amount of the employer’s withdrawal
liability”); 29 U.S.C. § 1391 (referring to the “[d]etermination
of amount of unfunded vested benefits,” and “[f]actors

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24
generally go to these computational facts. And we
acknowledged as much in Republic Indus., where we discussed
the limited authority of arbitrators under the MPPAA to resolve
discrete issues such as the applicability of statutory exemptions
under the statute and “the amount of . . . withdrawal liability
now due and payable.” 693 F.2d at 297. Among other things
arbitrators had no authority to resolve, we concluded, are facial
constitutional challenges to the MPPAA. Id.; see also In re
Centric Corp., 901 F.2d 1514, 1518 (quoting Carl Colteryahn
Dairy v. W. Pa. Teamsters & Emp.’s Pension Fund, 847 F.2d
113, 118 (3d Cir. 1988)) (observing that matters subject to
arbitration are “those which go to the merits of the liability
assessment itself” such as “how and when withdrawal liability
is to be assessed”) (internal quotation marks omitted).
Under the plain language of the statute, there is no
“determination” to be made by the fund or any other party as
to the timeliness of a fund’s notice and demand. Instead, what
is required by the statute is that the notice and demand be
timely for a claim for withdrawal liability to accrue. So, we
conclude that although the question of whether a fund has
complied with its obligation to act “as soon as practicable” may
be a threshold question that could be addressed by an arbitrator
in the course of resolving disputes about “determinations
made” as to the withdrawal liability under § 1401(a)(1), it is
not itself a “determination” required to be arbitrated.
As we made clear in Allied, timely notice and demand
is an element of a withdrawal liability claim, so the existence
of this element may be decided by a court sua sponte and
determining computation of amount of unfunded vested
benefits”).

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25
without first submitting the matter to an arbitrator, especially
where a decision is straightforward. That the court may render
a decision as to timeliness without the question being first
presented to an arbitrator is further consistent with our
precedent, which has recognized that arbitration is not
necessarily required for all issues that arise in connection with
withdrawal liability under the MPPAA.
Quite apart from the Dissenting Opinion’s
characterization that we have manufactured a “dichotomy”
between “predicate” and “ordinary” elements to reach the
result in this case, the result is dictated by the Supreme Court’s
decision in Bay Area and our own precedent in Allied. We
merely reason, consistent with this precedent, that the “as soon
as practicable” requirement must be met before the Fund even
has a claim against the employer. As we recognized in Allied,
unless and until each element of the withdrawal liability claim
has been met, “the fund’s ‘interest in receiving withdrawal
liability does not ripen into a cause of action.” Allied, 107
F.4th at 197 (emphasis added). Among these “elements,” we
expressly held, is the “prompt delivery of notice and payment
demand,” which “[i]s a predicate to suing.” Id. at 198
(emphasis added). It makes little sense, as the Dissenting
Opinion insists, to require that a claim that is legally unripe be
submitted to an arbitrator especially given our recognition in
Republic Indus. and Dorn’s that the MPPAA’s arbitration
requirement is not jurisdictional, 787 F.2d at 903. Moreover,
the Dissenting Opinion fails to mention let alone grapple with
either Bay Area or Allied, which compel our conclusion.

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26
iii.
As we have explained, the MPPAA expresses a “clear
preference for self-regulation through arbitration.” Republic
Indus., 693 F.2d at 294-95. And while in the mine run of cases
this clear preference will prevail, we have recognized some
exceptions. In Dorn’s, for example, we held that a district court
may exercise its sound discretion to “bypass arbitration,” in
“rare cases” that would not benefit from arbitration. 787 F.2d
at 903. Citing Republic Indus., we identified “several relevant
considerations,” in determining whether a court could exercise
its discretion in bypassing arbitration:
whether the issue [i]s one in which an arbitrator
would have special expertise;
whether there was a reasonable possibility that
arbitration would moot further proceedings and
thus serve the goals of judicial economy; and
whether arbitration would help develop a fuller
factual record that would assist the district court.
Id. (citing Republic Indus., 693 F.2d at 295-96). Since we first
decided Dorn’s, we have made sure to highlight our
observation there that bypassing arbitration should be
permitted only in the “rare case.” See Colteryahn’s, 847 F.2d
113, 123 n.17 (acknowledging that Dorn’s limited bypassing
arbitration in the “rare case where there would be no need for
factual development”) (citation and internal quotation marks
omitted) (emphasis in the original). But these rare cases would
not be those in which there was no dispute as to employer
status. The “rare cases” exception becomes significantly

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27
broader where the issue of employer status, as in Barker &
Williamson, is thrown into the mix.
And even if we felt constrained by the “rare case”
admonition, we conclude that this case falls within the narrow
category of “rare cases” we identified in Dorn’s that need not
first proceed through arbitration.9
First, resolution of the timeliness question on the record
before the District Court did not require the special expertise
of an arbitrator. As the District Court found, and the Fund does
not dispute on appeal, “[b]ased upon the record evidence, as of
2013, the Fund had all the requisite information available to be
aware” of the purported withdrawal liability. JA24. The
District Court also found, and the Fund again does not dispute,
that the “lengthy procedure” in Allied, which we recognized
failed to establish excusable delay by the Fund, is the same
procedure at issue in this case. The Fund took eight years to
act after the last payment by Gagliano’s company. Moreover,
Gagliano, who likely would have been a key witness in any
proceedings to resolve the merits of the withdrawal liability
claim, died during this time. This serves to highlight the
obvious dilatoriness of the Fund’s delivery of notice and
demand.
9 The Dissenting Opinion also protests that we have resurrected
and expanded Dorn’s, which it contends had been relegated to
the “dustbin” of the year “1986.” But beyond quibbling with
our view of Dorn’s, it has ignored precedent that, while on the
one hand has acknowledged the “rarity” of its applicability, on
the other hand has never overruled it. Thus, Dorn’s remains
good law.

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28
We also hasten to note that in neither its briefs nor at
argument did the Fund urge that the District Court’s finding
that the Fund did not act as soon as practicable in issuing its
notice and demand was clearly erroneous. That it would not so
urge on appeal is unsurprising given the Fund’s effort to justify
its lengthy delay in briefing before the District Court fell short
of any reasonable mark. See D.C. CM/ECF No. 50 at 15
(arguing that the Fund’s delay was excusable in the context of
a laches defense). By its own admission, the Fund’s procedure
to determine withdrawal liability, ineffective as it was,
identified Gagliano’s company as having withdrawn from the
Fund by no later than 2019. See D.C. CM/ECF No. 50 at 16
(admitting that “CTI appeared on [the Fund’s] five-year
inactive list [by] 2019”). And yet, the Fund did not issue its
notice and demand to the Companies until 2021. No special
expertise was required for the District Court to determine what
was plain from the undisputed record—the Fund’s actions were
not timely.
Second, the Companies had properly placed the
question of their status as employers before the District Court
such that the court would ultimately have had to render a
decision on that issue. Thus, the District Court’s decision to
resolve the case on the timeliness ground without expending
additional resources on the employer status issue served, rather
than hindered, the goal of judicial economy. Were the District
Court to have decided otherwise, it would have been forced to
impanel a jury to decide the disputed facts relating to the
Companies’ status under the MPPAA only to conclude after a
lengthy trial that, as a matter of law, the Fund’s claim failed
because it did not provide its notice and demand to the
Companies in compliance with § 1399(b)(1). The District

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29
Court was right to staunch the flow of further resources to this
case.
Third, there would have been no benefit to insisting that
the parties first arbitrate the matter to develop the factual
record. Again, as the case was properly presented to the
District Court to determine the Companies’ employer status,
the parties were bound to, and did in fact, conduct discovery.
JA10. Thus, the parties had an opportunity to develop the facts,
and the District Court was presented with a fulsome record
upon which it based its decision. An arbitrator would not have
had a better opportunity to develop the record than the District
Court had here.
To insist, as the Fund insists, that arbitration was
required on this record is contrary not only to the law, but
contrary as well to the essential purpose of arbitration in the
statutory scheme in the first place—to promote the speedy and
effective resolution of disputes. This case required little by
way of factual development as all that was required was
straightforward application of Allied. Finally, although the
Fund protests that permitting the bypassing of arbitration in
this case would sanction the “unfettered discretion of the
district court,” Reply Br. 5, to take up issues that should
normally pass through arbitration under § 1401(a)(1), the
circumstances under which a court would approve of
bypassing arbitration that was otherwise required by statute are
exceedingly rare.
III.
For these reasons, we will affirm the District Court’s
order.

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1
RTI Restoration Technologies, Inc. v. International Painters
& Allied Trades Industry Pension Fund, No. 24-2874
PHIPPS, Circuit Judge, dissenting.
There are plenty of reasons to conclude, as the Majority
Opinion does, that the Fund did not act “as soon as practicable”
in attempting to collect withdrawal liability from the
Companies. 29 U.S.C. § 1399(b)(1). But clarity as to the
resolution of that issue does not mean that the question is
properly decided by a federal court instead of by an arbitrator.
And from the text of the Multiemployer Pension Plan
Amendments Act of 1980, that issue should be initially
decided in arbitration – not in court. For that reason, as
elaborated below, I respectfully dissent.
The MPPAA has an unequivocal arbitration requirement
for disputes between employers and plan sponsors concerning
a range of determinations:
Any dispute between an employer and the plan
sponsor of a multiemployer plan concerning a
determination made under sections 1381 through
1399 of this title shall be resolved through
arbitration.
Id. § 1401(a)(1). The requirement that a plan sponsor notify
an employer of its liability “as soon as practicable after an
employer’s complete or partial withdrawal” from a plan is
codified in section 1399 of Title 29 – one of the sections within
the statutory range subject to arbitration. See id. § 1399(b)(1).
Thus, any determination concerning the as-soon-as-practicable
requirement is subject to the MPPAA’s arbitration requirement
and should not be addressed in the first instance in federal
court.
The Majority Opinion reaches a contrary result, and neither
of its rationales hold up.

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2
First, the Majority Opinion announces that there are two
tiers of elements for an employer’s claim against a plan sponsor
under the MPPAA. There are, on the one hand, the newly
conceived ‘predicate elements,’ which are not subject to
arbitration under the MPPAA, and, on the other hand, there are
the remaining, ordinary elements, which are, according to the
Majority Opinion, the determinations subject to arbitration
under the MPPAA.1 With that dichotomy in place, the
Majority Opinion then deems the as-soon-as-practicable
determination to be one of the newly announced ‘predicate
elements’ outside of the MPPAA’s arbitration requirement.
The novelty of this approach buys nothing because the text of
the MPPAA places the as-soon-as-practicable determination
within the statutory range subject to arbitration – regardless of
whether it can be labeled as a predicate element or an ordinary
element.
Second, and perhaps based on a sense that the predicate-
element invention is on shaky footing, the Majority Opinion
expands the atextual, rare-case exception announced in the
Dorn’s decision from 1986. See Dorn’s Transp., Inc. v.
Teamsters Pension Tr. Fund of Phila. & Vicinity, 787 F.2d
897, 903 (3d Cir. 1986). Until today, Dorn’s was in a dustbin.
On three occasions, this Court considered the Dorn’s rare-case
exception, declined to apply it, and limited it to its facts. See
Flying Tiger Line v. Teamsters Pension Tr. Fund of Phila.,
830 F.2d 1241, 1254 (3d Cir. 1987) (distinguishing Dorn’s as
a “rare case”); Carl Colteryahn Dairy, Inc. v. W. Pa. Teamsters
& Emps. Pension Fund, 847 F.2d 113, 123 n.17 (3d Cir. 1988)
(construing Flying Tiger to “limit[] Dorn’s to its particular
facts”); Crown Cork & Seal Co. v. Cent. States Se. & Sw. Areas
1 To be sure, precedent allows a party to challenge the
applicability of the MPPAA’s arbitration mandate in court, see
Flying Tiger Line v. Teamsters Pension Tr. Fund of Phila.,
830 F.2d 1241, 1251 (3d Cir. 1987), but once a dispute is
within that mandate, every element of an MPPAA claim should
be subject to arbitration, see 29 U.S.C. § 1401(a)(1).

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3
Pension Fund, 881 F.2d 11, 18 n.17 (3d Cir. 1989) (“[C]ircuit
precedent permitting arbitration to be bypassed—particularly,
Dorn’s Transportation, 787 F.2d 897—has been limited to its
particular facts.”). After the last of those decisions in 1989,
this Court has not relied on the Dorn’s rare-case exception.
Resurrecting and expanding Dorn’s rare-case exception
contravenes the line of precedent that has limited Dorn’s to its
facts.
In sum, it is not necessary to manufacture a predicate-
element approach or to revive and enlarge a long-abandoned
atextual exception because the answer to the question
presented here can be found in statutory text: as-soon-as-
practicable determinations are subject to mandatory
arbitration. See 29 U.S.C. § 1401(a)(1); see also id.
§ 1399(b)(1).

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