United States Seventh Circuit

In a suit for collection of withdrawal liability under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), a ruling finding that a proof of claim filed in 1999 in Chapter 7 bankruptcy constituted a statutory demand and cut off defendant's right to contest liability is affirmed where: 1) statutory notice and demand were not met when the plaintiffs filed the notice in Chapter 7 bankruptcy since it must be sent to the employer and Chapter 7 involves a trustee who is neither an agent of the debtor nor a fiduciary of the debtor; 2) notice to former members of the controlled group does not constitute constructive notice for the rest of the group; and 3) the notice did eventually get to the controlled group and they waived arbitration by not initiating the procedure and waiting until they were sued. However, the issue of damages is vacated and remanded where: 1) summary judgment granted to plaintiffs was not based on the motion presented by the plaintiffs; 2) plaintiffs were not given an opportunity to argue their case before summary judgment was granted on the issue of accelerated debt; 3) issues of liquidated damages depends on whether the debt was ever accelerated and when it acceleration occurred; and 4) payments by defendant should have applied first to accrued interest and then the principal.

Appellate Information

• Decided 05/13/2008
• Published 05/13/2008

Judges

• CUDAHY, Circuit Judge., Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.

Court

• United States Seventh Circuit

Counsel

• For Appellees:
  
• James D. O'Connell (argued), Much, Shelist, Freed, Denenberg, Ament & Rubenstein, William W. Leathem, Jacobs, Burns, Orlove, Stanton & Hernandez, Chicago, IL, for Plaintiffs-Appellees, Cross-Appellants., Thomas M. Christina (argued), Ogletree, Deakins, Nash, Smoak & Stewart, Greenville, SC, for Defendants-Appellants, Cross-Appellees.