Central States, Southeast v. LAGUNA DAIRY, S. DE R.L. DE C.V., a Mexican Corpora- tion formerly known as Laguna…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 23-3206
CENTRAL STATES, SOUTHEAST AND SOUTHWEST
AREAS PENSION FUND, CHARLES A. WHOBREY, as
Trustee,
Appellants
v.
LAGUNA DAIRY, S. DE R.L. DE C.V., a Mexican Corpora-
tion formerly known as Laguna Dairy, S.A. de C.V.; LALA
BRANDED PRODUCTS LLC, a Texas limited liability com-
pany formerly known as Lala Branded Products, Inc.; GILSA
REAL ESTATE CO., LLC, a Nebraska limited liability com-
pany; FARMLAND DAIRIES LLC, a Delaware limited lia-
bility company; PROMISED LAND DAIRY, LLC, a Dela-
ware limited liability company formerly known as PL Newco,
LLC; SINTON DAIRY FOODS COMPANY L.L.C., a Colo-
rado limited liability company; NEW LAGUNA, LLC, a Del-
aware limited liability company

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Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1:22-cv-01135)
District Judge: Honorable Todd M. Hughes
Argued September 23, 2024
Before KRAUSE, BIBAS, and AMBRO, Circuit Judges
(Opinion filed: March 27, 2025)
Andrew J. Herink (Argued)
Brad F. Berliner
CENTRAL STATES LAW D EPARTMENT
8647 W Higgins Road
Chicago, IL 60631
William A. Hazeltine
William D. Sullivan
SULLIVAN HAZELTINE ALLINSON
919 N Market Street
Suite 420
Wilmington, DE 19801
Counsel for Appellants

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Rudolf Koch
Jason J. Rawnsley
RICHARDS , L AYTON & FINGER , P.A.
920 N King Street
Wilmington, DE 19801
James L. Bromley
Andrew J. Finn (Argued)
Zachary R. Ingber
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, NY 10004
Counsel for Appellees
OPINION OF THE COURT
AMBRO, Circuit Judge
The Multiemployer Pension Plan Amendments Act
(MPPAA), 29 U.S.C. §§ 1381–1461, requires employers that
withdraw from a multiemployer pension plan to cover the lia-
bility, interest, and penalties incurred by the withdrawal. Bd. of
Trs. of Teamsters Loc. 863 Pension Fund v. Foodtown, Inc.,
296 F.3d 164, 168 (3d Cir. 2002). Here, the Central States,
Southeast and Southwest Areas Pension Fund (the “Fund”) in-
itially sought payment from two withdrawing employers, Bor-
den Dairy Company of Ohio, LLC and Borden Transport Com-
pany of Ohio, LLC (the “Borden Ohio entities”). A dispute be-
tween the Fund and the Borden Ohio entities ended in a

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settlement agreement entered during the pendency of an arbi-
tration process. The Borden Ohio entities have since gone
bankrupt and ceased making withdrawal liability payments.
The Fund now seeks to collect those payments from other com-
panies (the “Related Employers”) that were commonly con-
trolled with the Borden Ohio entities. Companies under com-
mon control can be held jointly and severally liable for with-
drawal payments under the MPPAA. 29 U.S.C. § 1301(b)(1);
see also 26 C.F.R. § 1.414(c)-2.
Before us is whether the Fund can sue to collect those
payments. Our answer depends on whether the settlement
agreement is properly understood under the MPPAA as a revi-
sion to the withdrawal liability assessment. We conclude it is.
Because no employer began an arbitration with respect to that
revised assessment, the Fund has a cause of action under
§ 1401(b)(1). Section 1399(b)(1) supplies the procedural re-
quirements for notice and demand here, and the Fund met those
requirements. We therefore reverse the District Court’s order
dismissing the Fund’s suit under Federal Rule of Civil Proce-
dure 12(b)(6).
I. BACKGROUND
A. Statutory Background
Congress enacted the MPPAA in 1980 to amend the
Employee Retirement Income Security Act of 1974 (ERISA),
29 U.S.C. § 1001 et seq., increasing the protection of plans
“when individual employers terminate their participation in, or
withdraw from, multiemployer plans” with unfunded liabilities
to pensioners. Pension Benefit Guar. Corp. v. R.A. Gray & Co.,
467 U.S. 717, 722 (1984). Withdrawing employers must pay

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the fund an amount calculated to “roughly match[] the em-
ployer’s proportionate share of the plan’s unfunded vested ben-
efits.” Bay Area Laundry & Dry Cleaning Pension Tr. Fund v.
Ferbar Corp. of Cal., Inc., 522 U.S. 192, 196 (1997) (cleaned
up); see also 29 U.S.C. § 1381. Entities under common control
are jointly and severally liable for withdrawals from the fund
by any member of the commonly controlled group. 29 U.S.C.
§ 1301(b)(1); Flying Tiger Line v. Teamsters Pension Tr. Fund
of Phila., 830 F.2d 1241, 1244 (3d Cir. 1987) (“Since a con-
trolled group is to be treated as a single employer, each mem-
ber of such a group is liable for the withdrawal of any other
member of the group.”).
The process of assessing withdrawal liability begins
when the fund notifies the employer of the amount owed, the
payment schedule, and a demand for payment. 29 U.S.C.
§§ 1382, 1399(b)(1). The employer can then request that the
fund review any matter relating to the liability and schedule.
Id. § 1399(b)(2)(A)(i). The fund must respond by notifying the
employer of its decision, the basis on which it relies, and a jus-
tification for any change from the initial liability and schedule.
Id. § 1399(b)(2)(B).
Any continued dispute about the liability or schedule
must be arbitrated. Id. § 1401(a)(1). The parties have a limited
window to start arbitration. Id. If neither party starts it within
the allotted time, the fund may bring a statutory claim to collect
the amount it demanded “under section 1399(b)(1) . . . on the
schedule [it] set forth.” Id. § 1401(b)(1). If the parties instead
complete arbitration and the arbitrator issues an award, any
party can bring a statutory claim to enforce, vacate, or modify
that award. Id. § 1401(b)(2).

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Our case addresses a gap between these two types of
statutory claims. What happens if the parties settle during an
arbitration, meaning both that arbitration began and that no ar-
bitral award issued?
B. Factual and Procedural Background
Because we are reviewing a dismissal under Federal
Rule of Civil Procedure 12(b)(6), we take the well-pleaded fac-
tual allegations in the complaint as true. Winer Fam. Tr. v.
Queen, 503 F.3d 319, 327 (3d Cir. 2007).
The Fund is a multiemployer pension plan. The Borden
Ohio entities withdrew from the Fund in November 2014 per
29 U.S.C. § 1383. Those now-withdrawn entities are not par-
ties here, but all the Related Employers allegedly were under
common control with them. After the Borden Ohio entities
withdrew, the Fund, pursuant to 29 U.S.C. §§ 1382(2)
and 1399(b)(1), sent them a notice and demand for payment of
withdrawal liability in January 2015 for approximately $41.6
million, or 240 monthly payments of $199,647.14.
In March 2015, the Borden Ohio entities sought review
by the Fund of its assessment of the monthly withdrawal liabil-
ity payment, contesting an alleged computational error. 29
U.S.C. § 1399(b)(2)(A). Thereafter, they sought arbitration un-
der 29 U.S.C. § 1401(a)(1). Before the arbitration process fin-
ished, the Borden Ohio entities and the Fund entered a settle-
ment agreement in August 2016. It reduced the monthly pay-
ment to $183,225.00. The Borden Ohio entities waived any

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right to request review or to initiate arbitration and agreed to
dismiss the existing arbitration with prejudice.1
The Borden Ohio entities made the agreed monthly pay-
ments until they petitioned for bankruptcy in the United States
Bankruptcy Court for the District of Delaware in January 2020.
During the bankruptcy proceedings, two of the employers in
our case—Laguna Dairy, S. de R.L. de C.V. (“Laguna”) and
New Laguna, LLC (“New Laguna”)—objected to the planned
use of a reserve account because they wished for that money to
be used to pay the pension liability owed by the Borden Ohio
entities. Laguna and New Laguna ultimately released and
waived their claims in a settlement relating to that account in
exchange for their release from the obligation to indemnify the
debtors for their withdrawal liability to the Fund. Although the
Fund participated in other aspects of the bankruptcy cases, it
was not a party to that agreement. In fact, it explicitly reserved
its rights to seek payment for the withdrawal liability from non-
bankrupt entities.
The Fund received $128,576.22 toward the withdrawal
liability from the bankruptcy distributions. It then sent past-due
1 In the relevant clauses, the agreement uses the term “Borden
Controlled Group,” App. 279–80, which it defines as “the Bor-
den [Ohio] [e]ntities and all trades or businesses under com-
mon control with the Borden [Ohio] [e]ntities within the mean-
ing of 29 U.S.C. § 1301(b)(1) and the regulations thereunder,”
App. 276. But only the Fund and the Borden Ohio entities ex-
ecuted the agreement. App. 283. It is thus unclear whether the
agreement binds the commonly controlled entities, and counsel
did not resolve the issue when asked at oral argument. We ad-
dress the implications of this ambiguity infra at 12 & n.3.

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notices to the non-bankrupt entities under common control
with the Borden Ohio entities (namely the Related Employers2)
who did not make any payments. The Fund sued in the U.S.
District Court for the District of Delaware in August 2022.
The District Court granted the Related Employers’ mo-
tion to dismiss under Rule 12(b)(6) in November 2023. It ruled
that “the MPPAA does not provide a statutory cause of action
to enforce a private settlement agreement.” App. 12. More spe-
cifically, “the action under § 1401(b) is available only in cases
where the arbitration proceeding has not been initiated within
the statutory period or has been completed. It is not available
where the arbitration proceeding has been initiated, but not
completed, as is true here.” App. 13. The District Court also
concluded that the Fund failed to meet the procedural require-
ments for notice and demand outlined in 29 U.S.C.
§ 1399(b)(2).
II. ANALYSIS
The District Court had jurisdiction under 29 U.S.C.
§§ 1132(e), 1132(f), and 1451(c). It issued a final order on No-
vember 17, 2023, and the Fund timely appealed to us on De-
cember 15, 2023. Our jurisdiction is under 28 U.S.C. § 1291,
and we review de novo an appeal from a dismissal under Rule
12(b)(6). See City of Edinburgh Council v. Pfizer, Inc., 754
F.3d 159, 166 (3d Cir. 2014).
2 We need not determine which entities were in fact under com-
mon control because we take the well-pleaded allegations in
the complaint as true. Winer Fam. Tr. v. Queen, 503 F.3d 319,
327 (3d Cir. 2007).

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A. Is the settlement agreement a revision of the
withdrawal liability assessment, meaning the
Fund would have a cause of action under 29
U.S.C. § 1401(b)?
The Fund contends that the settlement agreement con-
stitutes a revised withdrawal liability assessment and that the
Related Employers did not seek to arbitrate that assessment. If
this framing is correct, the Fund could sue under § 1401(b)(1),
which applies when no arbitration has been filed. It emphasizes
that the dispute-resolution process outlined in the MPPAA was
meant to benefit pensions by preserving their resources, not to
impose hurdles to pension-initiated revisions.
The Fund relies on two key cases: National Shopmen
Pension Fund v. DISA Industries, Inc., 653 F.3d 573 (7th Cir.
2011); and Masters, Mates & Pilots Pension Plan v. USX
Corp., 900 F.2d 727 (4th Cir. 1990). In DISA Industries, a fund
revised an employer’s payment schedule based on a previous
MPPAA interpretation error. 653 F.3d at 578–79. The Seventh
Circuit rejected the employer’s contention that the fund could
only revise the initial assessment in response to an employer
challenge, through arbitration, or through proceedings in fed-
eral court. Id. at 579. The Court relied on the purposes of the
statute: “Given the strong preference the MPPAA establishes
for the collection of withdrawal liability in a manner that pro-
tects the solvency of multiemployer plans, a fund must be able
to revise an assessment of withdrawal liability, within a rea-
sonable period of time, if it discovers that it has undercharged
an employer.” Id. at 580.
In USX Corp., the Fourth Circuit similarly concluded
that the MPPAA “simply does not address whether revisions

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to withdrawal liability assessments must be made by plan spon-
sors within a certain period of time,” nor does it address “the
ability of a plan to cure errors in the original assessment once
the employer has invoked arbitration.” 900 F.2d at 735. Citing
“one of the motivating purposes behind [the] MPPAA”—“re-
quiring withdrawing employers to pay their proportional share
of the plan’s unfunded benefit obligations so as to relieve the
funding burden on remaining employers,” id. at 735–36—it
concluded that “[a]bsent prejudice to the opposing party, the
mere fact that a revision is offered late in the arbitration process
is not enough to bar it,” id. at 736. The Court therefore allowed
the assessment to be revised during the arbitral process.
These cases are persuasive here. They demonstrate that
(1) the purpose of the MPPAA is to ensure the solvency of
multiemployer plans, and (2) case law has interpreted the stat-
ute liberally to protect plans’ solvency. DISA Indus., 653 F.3d
at 580; USX Corp., 900 F.2d at 735–36; see also Bd. of Trs. of
Trucking Emps. of N. Jersey Welfare Fund, Inc. - Pension
Fund v. Centra, 983 F.2d 495, 497–98 (3d Cir. 1992) (relying
on the premise that funds may revise withdrawal liability as-
sessments via settlement agreements); Anita Founds., Inc. v.
ILGWU Nat’l Ret. Fund, 902 F.2d 185, 186–87 (2d Cir. 1990)
(same). Drawing on those principles, we hold that the settle-
ment agreement is properly understood as a revision to the
withdrawal liability assessment; thus, the Fund has a cause of
action under 29 U.S.C. § 1401(b) because the Related Employ-
ers did not file for arbitration regarding that revised assess-
ment.
The text of the settlement agreement also supports this
interpretation. It explicitly characterizes the agreement as
“revis[ing]” the “2014 Withdrawal Liability” assessment that

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the Fund first put forward. App. 278. The agreement also con-
tains several references to sections of the MPPAA, supporting
the Fund’s position that this revision did not take the dispute
outside the statutory scheme.
True, the statute, our precedent, and an opinion of the
Pension Benefit Guaranty Corporation (PBGC) tell us that dis-
putes under the MPPAA must be decided by an arbitrator in
the first instance. See 29 U.S.C. § 1401(a)(1) (“Any dispute be-
tween an employer and the plan sponsor of a multiemployer
plan concerning a determination made under sections
1381 to 1399 of this title shall be resolved through arbitra-
tion.”); Huber v. Casablanca Indus., Inc., 916 F.2d 85, 110 (3d
Cir. 1990) (“The claims raised by both parties regarding
the . . . assessment all concern the validity of the assessment,
and arbitral procedure. These issues are central to the calcula-
tion of the withdrawal liability, and are reserved for arbitra-
tion.”), abrogated on other grounds by Milwaukee Brewery
Workers’ Pension Plan v. Joseph Schlitz Brewing Co., 513
U.S. 414 (1995); Flying Tiger Line, 830 F.2d at 1249 (empha-
sizing “the importance of the legislature’s decision that arbitra-
tion, and not the courts, is the proper forum for the initial res-
olution of disputes [under MPPAA]” (internal quotation marks
omitted) (second alteration in original)); PBGC, Letter No. 90-
2 (Apr. 20, 1990) (“If the employer contests the plan’s right to
revise its original assessment or issue a second assessment, this
dispute, like other disputes involving withdrawal liability, must
be resolved first through arbitration and then, if necessary,
through the courts.”). However, the time period for invoking
arbitration has now run, so we must resolve the dispute.
The Related Employers here contend that they were not
bound by the settlement agreement between the Fund and the

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Borden Ohio entities (including its provision preventing fur-
ther arbitration), thus leaving them free to seek arbitration as
to the settlement agreement (a revision of the withdrawal lia-
bility assessment).3 We agree that they could have done so. The
problem is they did not. They slept on their rights and cannot
overcome that failure by asking us now to decide what should
have been decided by an arbitrator in the first instance.
Our conclusion today does not give funds free rein to
revise their liability assessments whenever they please. We
agree with our sister circuits that funds may revise liability as-
sessments so long as the employer is not prejudiced and the
revision was made in good faith. See DISA Indus., 653 F.3d at
580; USX Corp., 900 F.2d at 736. Treating the settlement
agreement here as a revision does not prejudice the Related
Employers, nor is there any evidence before us that the Fund
acted in bad faith. DISA Industries suggests that an employer
is not prejudiced if it can “seek the full panoply of administra-
tive and judicial remedies set forth in the MPPAA.” 653 F.3d
at 581. The Related Employers contend that they would be
3 If the Related Employers were bound by the settlement agree-
ment, they would not have been permitted by its terms to pur-
sue further arbitration relating to this dispute. In other words,
they would have voluntarily relinquished their arbitral rights,
which would still mean that no arbitration would begin as to
the revised assessment. Our conclusion about the cause of ac-
tion under 29 U.S.C. § 1401(b)(1) would still apply. As an
aside, that the settlement agreement contemplated the possibil-
ity of arbitration under the MPPAA is further evidence that the
parties understood their dispute still to fall within that statutory
scheme and that the Related Employers were on notice of that
understanding.

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prejudiced by treating the agreement as a revision because they
were not parties to it. But as explained above, they could have
challenged the revision under the MPPAA. 29 U.S.C.
§§ 1399(b)(2), 1401(a)(1); see also IUE AFL-CIO Pension
Fund v. Barker & Williamson, Inc., 788 F.2d 118, 127–28 (3d
Cir. 1986) (holding that notice to one is notice to all entities in
a commonly controlled group).
These inquiries regarding prejudice to an employer and
bad faith by a fund create meaningful limitations on funds’
ability to revise liability assessments. Far from allowing them
to make revisions at any time for any reason, our holding today
allows them to change their assessments only when they act in
good faith and without prejudice to the affected employers.
That holding also leaves undisturbed the requirement that a
fund must begin the process of seeking payment from an em-
ployer “[a]s soon as practicable” under 29 U.S.C. § 1399(b)(1);
see also Allied Painting & Decorating, Inc. v. Int’l Painters &
Allied Trades Indus. Pension Fund, 107 F.4th 190, 198–99 (3d
Cir. 2024).
The Related Employers’ attempts to distinguish DISA
Industries and USX Corp. are unpersuasive. They maintain the
cases are off point because (1) they involved revisions to cor-
rect errors in applying the MPPAA statutory formula, not ne-
gotiated or discretionary changes, and (2) at the time of the re-
visions in question, the withdrawal liability arbitration either
had not begun or was ongoing. On the first point, the reasoning
of DISA Industries and USX Corp. does not rely on the revi-
sions being made to correct actuarial errors; they rely on the
policy behind the MPPAA of ensuring that multiemployer pen-
sions remain solvent. DISA Indus., 653 F.3d at 580–81; USX
Corp., 900 F.2d at 735–36. Tellingly, the Related Employers

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do not explain why this distinction between actuarial errors and
negotiated or discretionary changes matters.
The PBGC’s guidance also contemplates discretionary
changes. It opined that “plan fiduciaries have general authority
to compromise disputed claims, abandon worthless claims, and
otherwise conduct the plan’s affairs so as best [to] serve the
interests of participants and beneficiaries.” PBGC, Letter No.
87-12 (Oct. 27, 1987). “[R]ules which allow the trustees of a
multiemployer pension plan to modify and lower a financially
troubled employer’s withdrawal liability payment schedule are
consistent with ERISA and permissible under [§§] 4219(c)(7)
and 4224.” PBGC, Letter No. 91-6 (Aug. 19, 1991); see also
PBGC, Requests to Review Multiemployer Plan Alternative
Terms and Conditions to Satisfy Withdrawal Liability, 83 Fed.
Reg. 14,524, 14,525–26 (Apr. 4, 2018); Keith Fulton & Sons,
Inc. v. New England Teamsters & Trucking Indus. Pension
Fund, Inc., 762 F.2d 1137, 1142–43 (1st Cir. 1985) (explaining
that a plan is not necessarily bound to maximize withdrawal
liability payments and that whether a plan has met its fiduciary
duty in making its assessment is a case-by-case determination).
Thus, the Fund’s modifying the withdrawal liability assess-
ment in response to a settlement agreement that considered the
financial condition of the withdrawing employer should not af-
fect our analysis.4
4 Worth repeating is that this dispute began with an alleged
computational error. The recitals in the settlement agreement
specify that the withdrawing employers contested the amount
of the withdrawal liability, and counsel for the Fund repre-
sented at oral argument that the basis for that challenge was an
arithmetical error.

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On the second point, the Related Employers mischarac-
terize the procedural posture of DISA Industries. Although they
are correct that USX Corp. involved an arbitration that had not
yet concluded, 900 F.2d at 736, DISA Industries by contrast
involved an employer that voluntarily chose to terminate an ar-
bitration, 653 F.3d at 577–78, 582. It is therefore similar to our
case: both involve voluntary terminations of arbitration. In
DISA Industries, the employer “was left with only one option:
to comply” once it backed out of the arbitration. Id. at 582.
Even assuming they were not bound by the Borden Ohio enti-
ties’ agreement not to pursue further arbitration, the Related
Employers then voluntarily chose not to pursue arbitration with
respect to the revised withdrawal liability assessment. DISA In-
dustries is therefore pertinent.
The District Court emphasized that 29 U.S.C.
§ 1401(b)(1) “provides a cause of action to collect amounts
based on the ‘schedule set forth by the plan sponsor.’” App. 14
(quoting § 1401(b)(1) with emphasis added). So it concluded
that a settlement agreement negotiated and entered by both the
plan sponsor (the Fund) and the withdrawing employers (the
Borden Ohio entities) did not meet this requirement of
§ 1401(b)(1). We disagree. The plan sponsor here was still in-
volved in setting the schedule, as the statute outlines. Further,
making this distinction would create barriers to settlement.
Why would a fund seek mutual agreement on a schedule if it is
then barred from suing to enforce that schedule? We decline to
adopt a rule that would discourage settlements in this way, es-
pecially as they serve the purpose of the MPPAA by resolving
disputes more quickly and thereby protecting the solvency of
multiemployer plans. DISA Indus., 653 F.3d at 580–81; USX
Corp., 900 F.2d at 735–36.

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Another potential objection to our reading could be that
allowing funds to modify their withdrawal liability assess-
ments strays from the timelines outlined in the statute. The
MPPAA requires a fund to send its calculation of withdrawal
liability “[a]s soon as practicable” after an employer with-
draws. 29 U.S.C. § 1399(b)(1). The employer must send infor-
mal comments on the pension’s withdrawal liability calcula-
tion within 90 days of receipt, id. § 1399(b)(2)(A), and either
party can start arbitration to resolve differences within 180
days after it sends its comments, id. § 1401(a)(1). Once that
arbitration is over, either party has 30 days to file a suit seeking
to modify the arbitrator’s awarded withdrawal liability. Id.
§ 1401(b)(2). But importantly, it would not have been practical
for the Fund to seek payment from the Related Employers until
after the Borden Ohio entities’ bankruptcy. It could not have
anticipated until then that it would no longer be able to seek
payment directly from the withdrawing employers. Moreover,
revising the assessment under our reading starts the clock anew
for an employer to respond or to seek arbitration, so the dead-
lines do not become irrelevant. And funds are always incentiv-
ized to get paid as quickly as possible to maintain solvency, so
modification by the funds is unlikely to undermine the statu-
tory purpose of timely adjudication.
In short, the settlement agreement is properly under-
stood under the MPPAA as a revision to the withdrawal liabil-
ity assessment. Because no employer sought arbitration with
respect to that revised assessment, the Fund has a cause of ac-
tion under § 1401(b)(1).

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B. Did the Fund follow the procedural requirements
of 29 U.S.C. § 1399(b)?
The District Court ruled that the settlement agreement
did not meet the notice-and-demand criteria of
§ 1399(b)(2)(B). That section requires a fund, in response to an
employer’s comment or request for review, to “notify [an] em-
ployer of”: “(i) the plan sponsor’s decision, (ii) the basis for the
decision, and (iii) the reason for any change in the determina-
tion of the employer’s liability or schedule of liability pay-
ments.” 29 U.S.C. § 1399(b)(2)(B). The Related Employers
maintain that the District Court was correct: the settlement
agreement did not meet those procedural criteria for a revision
of the withdrawal liability assessment.
We agree. The settlement agreement does not explain
the basis for the Fund’s decision or the reason for the change
in the liability, nor does the Fund so contend. The District
Court thus correctly ruled that the settlement agreement did not
meet the notice-and-demand requirements of § 1399(b)(2)(B).
But that does not answer the broader question whether
the Fund complied with the requirements in § 1399(b). It con-
tends that § 1399(b)(1) applies when an employer has yet to
begin an arbitration proceeding. Because, in its view, the set-
tlement agreement created a withdrawal liability assessment to
which the Related Employers did not object or seek arbitration,
§ 1399(b)(1) applied. Under it, “[a]s soon as practicable after
an employer’s complete or partial withdrawal, the plan sponsor
shall (A) notify the employer of (i) the amount of the liability,
and (ii) the schedule for liability payments, and (B) demand
payment in accordance with the schedule.” 29 U.S.C.
§ 1399(b)(1) (cleaned up). Because notifying one member of a

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commonly controlled group suffices to notify all members,
Barker & Williamson, Inc., 788 F.2d at 127–28, and because
notice provisions are construed liberally to protect retirement
benefits, Foodtown, Inc., 296 F.3d at 175, the Fund asserts that
the settlement agreement satisfied the requirements of
§ 1399(b)(1).
It is correct. We concluded above that the settlement
agreement is properly understood as a revision of the with-
drawal liability assessment and the Related Employers failed
to file an arbitration proceeding with respect to that revised as-
sessment. Section 1399(b)(1) applies because of that same fail-
ure to file. Further, the settlement agreement outlined an
amount owed, a payment schedule, and a demand for payment,
thus satisfying all the requirements of the provision. And case
law establishes that a document need not be a formal notice-
and-demand letter to suffice under that section. See Chi. Truck
Drivers v. El Paso Co., 525 F.3d 591, 598 (7th Cir. 2008)
(holding that the standard is “indulgent about the specific form
a notice and demand may take”); Bowers v. Transportacion
Maritima Mexicana, S.A., 901 F.2d 258, 263 (2d Cir. 1990)
(holding that a complaint met the MPPAA’s notice require-
ments).
The Related Employers contend that relying on
§ 1399(b)(1) makes little sense because that section applies to
an initial assessment and (b)(2)(B) to a revised assessment. In
their view, if the procedures of (b)(1) could be used when re-
vising withdrawal liability, then (b)(2)(B) would be superflu-
ous. But this contention is unpersuasive because we draw the
line between (b)(1) and (b)(2)(B) differently. The former ap-
plies when an employer chooses not to comment on an assess-
ment, as happened here with respect to the settlement

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agreement, whereas (b)(2)(B) applies when an employer com-
ments on an assessment. See 29 U.S.C. § 1399(b)(2)(A)-(B).
The text of (b)(2)(B) is indeed more stringent than (b)(1), but
(b)(2)(B) has an important role to play, as it still applies fol-
lowing an employer comment.
The Related Employers further object that the settle-
ment agreement does not “reference the general notice provi-
sion of [§] 1399(b)(1)” and that the agreement disclaims the
statute’s dispute-resolution process, removing the dispute from
the statutory scheme. Appellees’ Br. 21–22. These arguments
fall short. Section 1399(b)(1) does not call for a specific invo-
cation of the statute; it simply requires listing an amount owed,
a payment schedule, and a demand for payment, which were
all present in the settlement agreement. Moreover, that the Bor-
den Ohio entities or the Borden Controlled Group, see supra 7
n.1, agreed not to pursue further arbitration hardly removes the
entire dispute from the statutory scheme, particularly under the
Fund’s reading of the settlement agreement as a revision. And
as discussed above, the settlement agreement frequently refer-
enced the MPPAA and thereby put the Related Employers on
notice that the parties still considered the dispute to fall within
the statutory scheme.
In short, § 1399(b)(1) applies, and the Fund has met its
requirements.
C. The Dissent’s Settlement Trap
Our dissenting colleague urges us to adopt a reading of
the statute that we believe is hyperliteral and contrary to com-
mon sense. Cf. RadLAX Gateway Hotel, LLC v. Amalgamated
Bank, 566 U.S. 639, 645 (2012) (Scalia, J.). In his view, once

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20
the parties choose arbitration, they cannot obtain judicially en-
forceable relief unless the arbitrator enters an award. This read-
ing turns settlements into traps. Rather than encouraging par-
ties to work out disagreements on their own, the dissent would
transform a settlement—the replacement for an arbitral
award—into a mere piece of paper that cannot be enforced.
Unfunded pensions would be left without recourse. That result
runs headlong into the statute’s purpose: a “strong preference”
for collection “in a manner that protects the solvency of mul-
tiemployer plans.” DISA Indus., 653 F.3d at 580. Adopting the
dissent’s approach would discourage settlements altogether.
If followed, that path also would create a circuit split.
As outlined in more detail above, other circuits rely on the
same principles that we do: (1) the purpose of the MPPAA is
to ensure the solvency of multiemployer plans; and (2) case
law interprets the statute flexibly to protect plans’ solvency.
DISA Indus., 653 F.3d at 580; USX Corp., 900 F.2d at 735–36.
The dissent explicitly rejects these decisions, calling them
“outdated” and “flaw[ed].” Diss. Op. at 9. We decline to create
a circuit split, choosing instead to follow the persuasive rea-
soning of our sister circuits.
In addition, the dissent overstates the practical conse-
quences of our decision. It worries that our approach would
allow funds to revise the liability amount and schedule “at any
time” and “as many times as they want.” Diss. Op. at 7. But as
we outlined above, such revisions would be sharply limited by
two requirements: (1) they cannot prejudice the employers; and
(2) they must be made in good faith. These strict constraints
would hardly allow for an “infinite loop” of changes. Diss. Op.
at 8.

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21
Finally, our dissenting colleague highlights “two fixes”
that he believes would leave room for settlements under his
reading of the statute. Diss. Op. 9. First, he points out that the
parties could still enforce their contractual rights under state
law. That may be true, but it is irrelevant to the question before
us. We are called on in a federal court to interpret federal law,
specifically the MPPAA, and remedies in another court system
under another body of law have no bearing on that inquiry.
Second, our colleague notes that a fund can—though it need
not—ask the arbitrator to enter the settlement agreement as an
award. But this invites the response of why ask an arbitrator to
enter a judgment on a matter not decided by that arbitrator (and,
indeed, perhaps contrary to that person’s inclination). We will
not endorse this suggestion of formalism, particularly in the
face of text in § 1401(b)(1) that negates the need for that step.5
* * * * *
The settlement agreement is properly understood as a
revision to the Fund’s withdrawal liability assessment. Be-
cause no employer sought arbitration regarding that revised as-
sessment, the Fund has a cause of action under § 1401(b)(1). It
follows that § 1399(b)(1) supplies the procedural requirements
for notice and demand here. The Fund met those requirements.
We thus reverse the District Court’s order dismissing the
Fund’s suit under Federal Rule of Civil Procedure 12(b)(6) and
remand the case for further proceedings.
5 It also appears that the dissent’s demand for an arbitrator to
enter a settlement as an arbitral award may be contrary to the
common practice of parties involved in MPPAA disputes, in-
cluding the Fund itself. See Fund Supp. Mem. 1–3.

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Central States v. Laguna, No. 23-3206
BIBAS, Circuit Judge, dissenting.
When “the statutory language provides a clear answer,” our
analysis “ends there.” Hughes Aircraft Co. v. Jacobson, 525
U.S. 432, 438 (1999). Yet the majority neither starts nor ends
there. Instead, it relies on abstract statutory purpose, atextual
precedents from other courts, and a non-binding opinion from
an agency. In doing so, it reshapes ERISA’s text to help a pen-
sion fund and retirees. I see the policy benefits of that result,
but I do not see how we can read ERISA’s text to get there.
Because we may not use purpose to override clear text, I respect-
fully dissent.
I. THE P ENSION F UND AND THE EMPLOYER
IGNORED ERISA’ S R ULES
A. Central States settled Borden’s withdrawal liability
outside arbitration
Central States is a multiemployer pension fund, and Borden
Dairy and Borden Transport (collectively, Borden) are compa-
nies that contributed to it. But Borden pulled out, incurring
ERISA withdrawal liability. So Central States notified Borden
that it owed more than $41 million for withdrawing; Borden
disputed that number. They started arbitrating but settled con-
tractually. In the settlement, Borden agreed to pay Central
States about $183,000 per month for about twenty years, a total
of roughly $40 million. As part of the settlement, they agreed
to ask the arbitrator to dismiss with prejudice. But he never
entered an award. Still, Borden began to pay each month.

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2
Borden paid roughly $10 million of that, but then went
bankrupt and stopped paying. Central States recovered only
about $128,500 from the bankruptcy. Looking for someone to
make it whole, Central States told Borden’s affiliates that they
were on the hook because of ERISA’s joint-and-several liabil-
ity. When they refused to pay, Central States sued them. The
District Court dismissed the case for failure to state a claim,
reasoning that Central States did not have a cause of action under
ERISA because it had started an arbitration but not completed
it. It was right.
B. Congress set out two specific paths that funds must
follow to recover withdrawal liability
Congress passed ERISA “to ensure that employees and
their beneficiaries would not be deprived of anticipated retire-
ment benefits by the termination of pension plans” before
enough funds had accumulated. PBGC v. R.A. Gray & Co., 467
U.S. 717, 720 (1984). But employers threaten that scheme
when they pull out of funds. So Congress amended ERISA by
passing the Multiemployer Pension Plan Amendments Act. Id.
at 723–25. Under that Act, “[i]f an employer withdraws from a
multiemployer plan … then the employer is liable to the plan”
for some of the lost money. 29 U.S.C. § 1381(a).
In that Act, Congress made specific choices about how
funds, like Central States, could pursue withdrawal liability. It
prescribed some threshold steps and then two paths.
Threshold steps: When an employer withdraws, the fund’s
sponsor (its board or administrator) must “determine the
amount of the employer’s withdrawal liability.”
§§ 1301(a)(10), 1382(1). It must act immediately: “As soon as

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3
practicable after an employer’s complete or partial with-
drawal,” the fund must “(A) notify the employer of (i) the
amount of the liability, and (ii) the schedule for liability pay-
ments, and (B) demand payment.” § 1399(b)(1). By moving
promptly to collect what it is due, it ensures that it has enough
money to pay benefits to its members on time.
After that, the employer can raise issues with the fund’s
determination. It has ninety days to ask for review of the
claimed liability and schedule, flag errors, and provide other
information. § 1399(b)(2)(A).
Once it gets the employer’s response, the fund decides the
final liability amount and schedule and tells the employer its
decision and reasons. § 1399(b)(2)(B). The employer must pay
that amount. § 1399(c)(1)(A)(i).
If the employer objects, the parties may take one of two
paths: (1) arbitrate any remaining disputes, have an arbitrator
enter an award, and sue to enforce or change that award; or
(2) forgo arbitration, letting the fund sue to enforce its payment
schedule. (Because some of the threshold steps are allowed but
not required, the plan and the employer can take either path
before the fund responds to the employer’s objections.)
Path 1: If disputes remain, they “shall be resolved through
arbitration.” § 1401(a)(1) (emphasis added). This arbitration
happens only once. Either party can start it within 60 days of
either (a) when the fund responds to the employer’s objections
by telling it how much it owes, or (b) when 120 days have
passed after the employer asks for review, whichever is earlier.
Id. Or the parties may jointly agree to arbitrate within 180 days
of when the fund first notifies the employer of its liability. Id.

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4
After an arbitration is “complet[ed] … in favor of one of the
parties,” either party may sue to “enforce, vacate, or modify
the arbitrator’s award.” § 1401(b)(2) (emphasis added).
Path 2: “If no arbitration proceeding has been initiated” to
resolve disputes, the fund can sue to collect the amounts owed
under its payment schedule. § 1401(b)(1).
Those paths are the only ones offered by the statute. And
they are mutually exclusive. If parties have chosen arbitration,
then they cannot go down Path 2. They have chosen Path 1.
This does not change if the parties chose arbitration but the
arbitrator did not enter an award. The parties are still in the
middle of Path 1. The statute does not create a Path 3 letting
them jump somewhere else. That is the situation here.

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5
C. Central States and Borden ignored ERISA’s rules
Though the parties started out just fine, eventually they got
off track. Two months after Borden withdrew, Central States
demanded payment on a schedule. Borden raised issues and
later started arbitration. But then they went astray; although
they started down Path 1 by arbitrating, they did not follow the
path all the way. Instead, they settled contractually and agreed
to ask the arbitrator to dismiss without letting him enter the

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6
settlement as a final award. If he had entered an award, either
side could have sued to enforce it. § 1401(b)(2). But there is no
award here to enforce. And because an “arbitration proceeding
has been initiated,” Central States cannot switch to Path 2 to
sue for the original amounts owed under its payment schedule.
§ 1401(b)(1). So Central States has stranded itself in a no-suit
zone: an arbitration was started (knocking out Path 2) but never
ended (knocking out Path 1). The District Court thus properly
dismissed the case.

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7
II. THE M AJORITY SLIGHTS ERISA’ S TEXT
To avoid ruling against the fund, the majority sets aside
ERISA’s text in favor of its supposed purpose, purposivist prec-
edents from sister circuits, and a non-binding agency opinion.
To start, the majority calls Central States’ contractual set-
tlement a “gap” in the statute. Maj. Op. 5. But the statute sets
forth two clear routes to dispute and change withdrawal liabil-
ity: either through an arbitral award or through a court judg-
ment. A private settlement, outside arbitration or court, is nei-
ther of these. If that is a gap, it was left there by Congress. It is
not our job to fill it in to build a different statute.
Then the majority tries to shoehorn Central States’ settle-
ment into ERISA’s text, saying funds can reset withdrawal
liability whenever they please. But nothing in the text or its con-
text supports that conclusion. To the contrary, ERISA assumes
that funds set the liability amount and schedule only once, start-
ing “[a]s soon as practicable after an employer’s . . . with-
drawal.” § 1399(b)(1). The parties may unilaterally trigger arbi-
tration, but only within a sixty-day window of either (1) when
the fund makes its final decision or (2) when 120 days elapse
after the employer asks to revise the initial liability amount and
schedule, whichever comes first. § 1401(a)(1). Or they may
jointly agree to arbitrate within 180 days of the fund’s initial
demand. Id. These timelines mean nothing if the fund can re-
start the process at any time.
The majority’s opinion adds a loop by drawing up a Path 3:
a side ramp that lets funds get off the main path at any time
(and presumably as many times as they want) to return to the
beginning, restarting the entire process.

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8
The majority, given its focus on purpose, should be uncom-
fortable with that potentially infinite loop. It undermines these
provisions’ specific purpose: giving the parties certainty and
finality. Congress set forth rules to keep pension funds solvent;
it did not create a free-for-all. To limit its new workaround, the
majority must invent a good-faith requirement. But courts can-
not broaden “a provision’s reach by inserting words Congress
chose to omit.” Lomax v. Ortiz-Marquez, 590 U.S. 595, 600,

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9
140 S. Ct. 1721, 1725 (2020). That atextual invention should
tip us off that the majority has gone astray.
The majority insists that following the text would discour-
age settlements, turning them into “traps.” But this concern
overlooks two fixes. For one, parties who fail to follow the stat-
ute (like the ones here) keep their contractual rights under state
law. For another, they could easily avoid this “trap” by having
an arbitrator enter the settlement as his award. That would let
them sue under Section 1401(b)(2). My colleagues puzzle over
why one would need to ask the arbitrator to enter this award.
But the answer is simple: § 1401(b)(1) applies only if “no arbi-
tration proceeding has been initiated.” § 1401(b)(1). So once
arbitration starts, the fund may sue only under § 1401(b)(2).
And that section applies only for suits “to enforce, vacate, or
modify the arbitrator’s award.” § 1401(b)(2). If there is no
award, there can be no suit under § 1401(b)(2).
Without any textual argument, the majority turns to prece-
dents from other circuits. But those precedents rely on outdated
purposivist reasoning. The Seventh Circuit thought that the
statute “is silent with regard to a plan’s authority to revise an
assessment of withdrawal liability.” Nat’l Shopmen Pension
Fund v. DISA Indus., 653 F.3d 573, 580 (7th Cir. 2011). To fill
in that supposed silence, that court (like my colleagues) relied
on the Pension Benefit Guaranty Corporation’s nonbinding
reading of the statute, rather than the statute itself. Id. But
courts may not rely on what agencies say; we must read statutes
for ourselves, exercising our own judgment. Loper Bright Enters.
v. Raimondo, 603 U.S. 369, 412–13 (2024). At bottom, the Sev-
enth Circuit’s reasoning turned on one of the statute’s pur-
poses—“the strong preference the [Act] establishes for the

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10
collection of withdrawal liability in a manner that protects the
solvency of multiemployer plans”—at the expense of its text.
653 F.3d at 580.
The Fourth Circuit similarly went astray. It too thought that
the “statute is silent as to the ability of a [fund] to cure errors
in the original assessment” by revising it outside of responding
to the employer, arbitrating, or suing in court. Masters, Mates
& Pilots Pension Plan v. USX Corp., 900 F.2d 727, 735 (4th
Cir. 1990). Instead of focusing on the text, it chose to “pro-
mot[e] one of the motivating purposes behind [the Act]—
requiring withdrawing employers to pay their proportional
share.” Id. at 735–36. Yet free-floating purpose cannot trump
text.
This debate about how to use purpose is an ancient one. The
traditional rule is that, if judges may rely on general statutory
purpose at all, they may do so only when the text is unclear.
See, e.g., 1 William Blackstone, Commentaries *59–62; 1 Jo-
seph Story, Commentaries on the Constitution of the United
States §§ 398–401, at 383–84 (Boston, Hilliard Gray and Co.
1833). Courts must first apply the other traditional tools of stat-
utory construction—primarily text, structure, and context—
before looking elsewhere. See 1 Blackstone *59–60. Indeed,
“[w]here the words are plain and clear, and the sense distinct
and perfect arising on them, there is generally no necessity to
have recourse to other means of interpretation.” 1 Story § 401,
at 384. When trying to figure out what lawgivers meant, “the
first resort in all cases is to the natural signification of the
words employed, in the order of grammatical arrangement in
which the framers of the instrument have placed them.”
Thomas M. Cooley, A Treatise on the Constitutional

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11
Limitations Which Rest Upon the Legislative Power of the
States of the American Union *57 (Boston, Little Brown & Co.
1868). Vaulting over the clear text to purpose risks “de-
stroy[ing] all law, and leav[ing] the decision of every question
entirely in the breast of the judge.” 1 Blackstone *62. That an-
cient temptation remains, but judges ought to resist it.
* * * * *
When the statutory text yields a clear result, we should start
and end with it. To achieve a better result, the majority starts
instead with the statute’s purpose. Though I see the benefits of
getting the fund its funding, I cannot agree to bypassing
ERISA’s text to do so. I respectfully dissent.

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