# Trustees of the Iam National Pension Fund v. M & K Employee Solutions, LLC

> District Court, District of Columbia · September 18, 2023

URL: https://www.frixlaw.com/law-library/cases/9840517

## Case

- **Court:** District Court, District of Columbia
- **Decided:** September 18, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Royce C. Lamberth
- **Nature of suit:** Civil
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9840517

## How later opinions describe it (automated extraction)

- concluding from testimony that deponent was “not aware of any such contracts” that no such contracts existed
- emphasizing the existence 43 of a court order

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TRUSTEES of the IAM NATIONAL
PENSION FUND,

Plaintiffs,

v. Case No. 1:20-cv-433-RCL

M & K EMPLOYEE SOLUTIONS, LLC,
et al.,

Defendants.

MEMORANDUM OPINION

This case began when M&K Employee Solutions, LLC – Alsip (“M&K ES Alsip”) refused

to pay withdrawal liability to the Trustees of the IAM National Pension Fund (the “Trustees”) in

defiance of the Multiemployer Pension Plan Amendments Act of 1980 (the “MPPAA”). M&K ES

Alsip is part of a network of interrelated legal entities operating truck dealerships in the midwestern

United States (collectively, “M&K”). Several of these entities are named as codefendants in this

suit alongside M&K ES Alsip. The Trustees allege that these entities are jointly and severally

liable for unpaid withdrawal liability, delinquent contributions, accrued interest, and liquidated

damages. On not one, but two occasions, the Court preliminarily enjoined defendants to pay

withdrawal liability to the Trustees. Both times, defendants defied the Court’s orders and refused

to pay. Eventually, defendants paid an amount of money to the Trustees and moved for partial

summary judgment. The Court denied that motion. Now, the Court must decide the Trustees’

motion for summary judgment and the defendants’ cross-motions. The Trustees seek judgment in

their favor on their various claims. The defendants seek summary judgment that they are not liable

1
for delinquent contributions and that the methodologies for calculating unpaid withdrawal liability

and accrued interest should be construed in their favor.

Before the Court reaches the parties’ motions for summary judgment, it will address two

other pending motions. Defendants seek leave to amend their responses to the plaintiffs’ fourth set

of requests for admissions. The Court will GRANT this motion. Defendants also ask the Court to

clarify or reconsider its earlier opinion denying the defendants’ motion for partial summary

judgment. The Court will DENY this motion. As for the summary judgment motions, the Court

concludes, based on applicable law and the undisputed factual record, that the M&K entities

constituted a functionally integrated enterprise and that the defendant entities named in this suit

are jointly and severally liable for unpaid withdrawal liability, delinquent contributions, accrued

interest, and liquidated damages. Accordingly, the Court will DENY the defendants’ motions for

summary judgment. The Court will GRANT the Trustees’ motion for summary judgment.

I. BACKGROUND

The Court’s previous Memorandum Opinions explained much of the background of this

case. See Trs. of the IAM Nat’l Pension Fund v. M & K Empl. Solutions, LLC,

No. 20-cv-433 (RCL), 2021 WL 1546947, at *1–3 (D.D.C. Apr. 20, 2021) (“IAM I”); Trs. of the

IAM Nat’l Pension Fund v. M & K Empl. Solutions, LLC, No. 20-cv-433 (RCL), 2022 WL 594539,

at *1–5 (D.D.C. Feb. 28, 2022) (“IAM II”); Trs. of the IAM Nat’l Pension Fund v. M & K Empl.

Solutions, LLC, No. 21-cv-2152 (RCL), 2022 WL 4534998, at *1–5 (D.D.C. Sept. 28, 2022)

(“Arbitration Decision”). Nevertheless, given the significant time that has passed since the Court’s

most recent decision, and the more detailed record required on summary judgment, the Court will

explain afresh the factual and procedural history of the ongoing legal contest between the Trustees

and the M&K defendants.

2
The Court will first discuss ERISA, withdrawal liability, and the “pay now, dispute later”

rule. The Court will then recount the factual history of this case, including: (1) the characteristics

of the IAM National Pension Fund; (2) the legal structure of the M&K Employee Solutions and

M&K Quality Truck Sales entities; (3) the M&K Employee Solutions entities’ obligations under

collective bargaining agreements; (4) the operational structure of the M&K Employee Solutions

and M&K Quality Truck Sales entities; (5) the creation of M&K Employee Solutions, LLC –

Northern Illinois; (6) Chad and Jodi Boucher’s home flipping operation; (7) the termination of the

M&K Employee Solutions entities’ collective bargaining agreements; (8) employee transfers from

the M&K Employee Solutions entities to M&K Employee Services, Inc., and Laborforce, Inc.; (9)

the Fund’s withdrawal liability assessments; and (10) events occurring during the course of this

litigation. The Court will then recount the case’s procedural history and describe the motions

presently before the Court.

A. ERISA, Withdrawal Liability, and “Pay Now, Dispute Later”

Congress enacted the MPPAA, codified at 29 U.S.C. §§ 1381–1461, to “protect the

financial solvency of multiemployer pension plans.” Bay Area Laundry & Dry Cleaning Pension

Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 196 (1997). The MPPAA, which amended the

Employee Retirement Income Security Act (“ERISA”), commands employers who withdraw from

underfunded multiemployer pension plans to pay “withdrawal liability.” Id. at 195. “Withdrawal

liability” comprises an employer’s share of a multiemployer pension plan’s unfunded, unvested

benefits. 29 U.S.C. § 1381(b)(1).

The MPPAA calls upon a plan’s trustees, not the employer, to propose the amount of

withdrawal liability and orders the trustees to set a payment schedule. Bay Area Laundry, 522 U.S.

at 197 (citing 29 U.S.C. § 1399(b)(1)). Of course, an employer is not completely bound by the

3
amount of withdrawal liability assessed by a plan’s trustees. It may timely initiate a dispute

resolution procedure, first by requesting review from the trustees and later by pursuing arbitration.

See 29 U.S.C. §§ 1399(b)(2), 1401(a)(1). Importantly, however, initiating a dispute of the amount

of withdrawal liability or the payment plan does not relieve the employer of the duty to pay. “Even

if the employer challenges the trustees’ withdrawal liability determination . . . it must still pay

according to the trustees’ schedule in the interim.” Bay Area Laundry, 522 U.S. at 197 (emphasis

added). This statutory requirement is colloquially referred to as the “pay now, dispute later” rule:

Withdrawal liability shall be payable in accordance with the
schedule set forth by the plan sponsor under subsection (b)(1) of this
section beginning no later than 60 days after the date of the demand
notwithstanding any request for review or appeal of determinations
of the amount of such liability or of the schedule.

29 U.S.C. § 1399(c)(2) (emphasis added); see also Bay Area Laundry, 522 U.S. at 197.

The “pay now, dispute later” rule is crucial to the survival of multiemployer pension funds.

It “mitigates the risk that a multiemployer plan will collapse when an employer withdraws and

contests the amount of withdrawal liability assessed.” IAM I, 2021 WL 1546947, at *8. Congress

knew that without such a rule, the “purpose of MPPAA would be undermined” because “employers

could postpone their debts to pension funds by engaging in protracted litigation over withdrawal

liability.” Galgay v. Beaverbrook Coal Co., 105 F.3d 137, 139 (3d Cir. 1997). The rule also

alleviates the risk that “during the course of arbitration, an employer will become insolvent, and

the fund will not be able to collect in the event of a favorable award.” Findlay Truck Line, Inc. v.

Cent. States, Se. & Sw. Areas Pension Fund, 726 F.3d 738, 742 (6th Cir. 2013).

To further emphasize the importance of the “pay now, dispute later” rule, Congress

authorized multiple remedies for a plan when an employer violates the rule. A plan may “invoke

a statutory acceleration provision” to demand all the unpaid withdrawal liability at once; it may

sue to collect the withdrawal liability; and it may seek liquidated damages, attorneys’ fees, and

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other costs. Bay Area Laundry, 522 U.S. at 197; see 29 U.S.C. §§ 1399(c)(5), 1451(a)(1), (b), (e).

Liquidated damages are something an employer “must pay as a penalty for refusing to follow the

statutory procedure for challenging assessments of withdrawal liability.” Cent. States, Se. & Sw.

Areas Pension Fund v. Lady Baltimore Foods, Inc., 960 F.2d 1339, 1347 (7th Cir. 1992). “Liability

for liquidated damages is separate from the underlying withdrawal liability itself.” Id.

B. Factual History

1. IAM National Pension Fund

The IAM National Pension Fund (the “Fund”) is a multiemployer pension plan with assets

held in a labor-management trust fund maintained under collective bargaining agreements. Pls.’

Statement of Undisputed Material Facts (“PSUMF”), ECF No. 160 ¶¶ 1–2; Defs.’ Resp. to PSUMF

(“DPSUMF”), ECF No. 170 ¶¶ 1–2. 1 The Fund is administrated pursuant to a trust agreement (the

“Trust Agreement”). PSUMF ¶ 3; DPSUMF ¶ 3. The Trustees are fiduciaries of the Fund. PSUMF

¶ 4; DPSUMF ¶ 4. The Trust Agreement contains a provision permitting the Trustees to “establish

such procedures, rules, and regulations which they deem appropriate to effectuate the purposes of”

the Trust Agreement. Trust Agreement, Creigh Decl., Ex. 2 to Pls.’ MSJ, ECF No. 160-3 at 18. 2

The Trust Agreement also contains a provision regarding retroactive amendment by the Trustees:

This Restated Trust Agreement may be amended in any respect from
time to time by the Trustees, provided that each amendment shall be
duly executed in writing by the Trustees. As to any amendment, the
Trustees in their discretion shall have full power to fix the effective

1
The Court, as a matter of course, will cite first to the Trustees’ statements of undisputed material facts, and then to
the defendants’ responses. If the defendants’ statements of undisputed material facts are additively helpful or an
undisputed factual proposition does not appear in the Trustees’ statements or the defendants’ responses, the Court will
either add a citation to the defendants’ statements of material facts, or cite to the defendants’ statements in lieu of
citing to the Trustees’. If the Court states a factual proposition and cites to a particular statement of fact that one of
the parties has labeled as “disputed,” it is because the Court has carefully reviewed the record and determined that the
factual proposition stated by the Court is not in fact disputed. In some instances, the Court will discuss the relevant
record evidence explicitly, or cite to it directly in lieu of citing to the parties’ statements and responses.
2
The Court will cite to ECF page numbers, not internal document page numbers or transcript lines.

5
date thereof. Any amendment may have retroactive effect if it is so
determined by the Trustees.

Id. at 33.

Employers contribute to the Fund pursuant to collective bargaining agreements.

Contributions not paid “on or before the last business day of the month in which the contributions

are due” are delinquent under the policy adopted by the Trustees for collecting delinquent

contributions (the “Contributions Policy”). Contributions Policy, Creigh Decl., Ex. 3 to Pls.’ MSJ,

ECF No. 160-4 at 3; see also PSUMF ¶¶ 7–9; DPSUMF ¶¶ 7–9. Under the Trust Agreement,

employers owe interest on delinquent contributions at the rate of 1.5% per month “from the date

of the delinquency until the due date payment is received.” Trust Agreement at 22. Amounts paid

for delinquent contributions are “credited first toward payment of the delinquent [c]ontributions,”

then “towards the outstanding interest accrued[, ]and then towards any liquidated damages.”

Contributions Policy at 3.

As of the end of 2016, the present value of the vested benefits owed under the Fund

exceeded the actuarial value of its assets. Actuarial Valuation Report as of January 1, 2017, Creigh

Decl., Ex. 4 to Pls.’ MSJ, ECF No. 160-5 at 4; see also PSUMF ¶ 12; DPSUMF ¶ 12. This

underfunding entitled the Fund to pursue withdrawal liability from any employers that thereafter

effectuated “a complete[ or] partial withdrawal” from the Fund. 29 U.S.C. § 1381(a).

On December 5, 2018, the Trustees adopted a policy for assessing withdrawal liability (the

“Withdrawal Liability Policy”). Withdrawal Liability Policy, Creigh Decl., Ex. 6 to Pls.’ MSJ,

ECF No. 160-7 at 2. Under the Withdrawal Liability Policy, the Trustees may declare an employer

in default if, in their discretion, they determine that “there is a substantial likelihood that the

employer will be unable to pay its withdrawal liability,” or the employer “failed to pay [a] past

due installment within 60 days” of receiving “the late payment notice.” Id. at 4–5. Under the

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Second Amendment to the Withdrawal Liability Policy, which the Trustees adopted on April 7,

2021, interest “will be charged on any amount in default from the date the payment was due to the

date it is paid at a fixed rate of 1.5% per month.” Id. at 11.

In contrast to the Contributions Policy, the Trust Agreement and the Withdrawal Liability

Policy do not “address whether payments received after an employer is declared in default should

first be credited toward the principal amount of the outstanding withdrawal liability” or to “accrued

interest on the unpaid principal.” PSUMF ¶ 17; DPSUMF ¶ 17.

2. M&K Employee Solutions and M&K Quality Truck Sales

M&K Truck Centers is a trade name for a family of commercial truck dealerships. PSUMF

¶¶ 33, 43; DPSUMF ¶¶ 33, 43. M&K Truck Centers sell trucks and trailers and provide various

truck-related services including financing, maintenance, and repairs. PSUMF ¶ 34; DPSUMF ¶ 34.

M&K Truck Centers’ website states that it “employs over 1,000 people in twenty-eight locations

in five states and is headquartered” in Michigan. PSUMF ¶ 35; DPSUMF ¶ 35. Each dealership

operates as a separate entity but is “owned directly or indirectly” by Ronald J. Meyering

(“Meyering”). PSUMF ¶ 37; DPSUMF ¶ 37.

Four M&K Truck Centers are relevant to this litigation: M&K Quality Truck Sales of

Alsip, LLC (“M&K Sales Alsip”), M&K Quality Truck Sales of Joliet, LLC (“M&K Sales Joliet”),

M&K Quality Truck Sales of Summit, LLC (“M&K Sales Summit”), and M&K Quality Truck

Sales of Northern Illinois, LLC (“M&K Sales Northern Illinois”). Each of these dealerships are

registered at the same address in Byron Center, Michigan, which serves as M&K Truck Centers’

headquarters. PSUMF ¶ 38; DPSUMF ¶ 38; see also M&K Truck Centers Corporate Brochure,

Shah Decl., Ex. 9 to Pls.’ MSJ, ECF No. 160-28 at 2; M&K Sales’s Answer to Fifth Amended

Complaint, Shah Decl., Ex. 13 to Pls.’ MSJ, ECF No. 160-32 at 20. M&K Sales Alsip, M&K Sales

7
Joliet, and M&K Sales Summit were organized in 2012 after Meyering acquired the “assets and

operations” of two dealerships located near Chicago. Defs.’ Statement of Undisputed Material

Facts (“DSUMF”), ECF No. 161-2 ¶¶ 1, 7; Pls.’ Resp. to DSUMF (“PDSUMF”), ECF No. 164-1

¶¶ 1, 7. M&K Sales Northern Illinois was established in 2013. PSUMF ¶ 40; DPSUMF ¶ 40. The

Court will refer to these four entities collectively as “M&K Sales.” 3

The M&K Sales entities do not formally employ anyone. PSUMF ¶ 52; DPSUMF ¶ 52.

Instead, they lease their employees from leasing companies owned by de facto officers of M&K

Sales. 4 PSUMF ¶ 53; DPSUMF ¶ 53. Six employee leasing companies owned by M&K Sales

officers are relevant to this litigation: M&K ES Alsip, M&K Employee Solutions, LLC – Joliet

(“M&K ES Joliet”), M&K Employee Solutions, LLC – Summit (“M&K ES Summit”), M&K

Employee Solutions, LLC – Northern Illinois (“M&K ES Northern Illinois”), M&K ESI, and

Laborforce. The court will refer to the four M&K Employee Solutions entities collectively as

“M&K ES.” 5

The M&K ES entities hired employees, which the M&K Sales entities leased from M&K

ES from October 1, 2012, until December 31, 2018. PSUMF ¶ 121; DPSUMF ¶ 121. On January

3
M&K Quality Truck Sales of Illinois, Inc. (“M&K Illinois”) owns 100% of M&K Sales Alsip, M&K Sales Joliet,
and M&K Sales Summit. PSUMF ¶¶ 41–42; DPSUMF ¶¶ 41–42. It owns 99% of M&K Sales Northern Illinois.
PSUMF ¶¶ 41–42; DPSUMF ¶¶ 41–42.
4
Meyering, Ted Pilecki (“Pilecki”), Chad Boucher (“Boucher”), and Rainelle Jansma (“Jansma”), all of whom
currently serve as de facto officers for M&K Sales, are employees of M&K Employee Services, Inc. (“M&K ESI”),
leased to M&K Sales. See PSUMF ¶¶ 44–47; DPSUMF ¶¶ 44–47. They were previously employed by M&K Sales
directly. DSUMF ¶¶ 1–2; PDSUMF ¶¶ 1–2. As discussed below, Jansma formed the various M&K Employee
Solutions entities and owned them until 2014, when she sold them to Boucher. PSUMF ¶¶ 80–81; DPSUMF ¶¶ 80–
81. Jansma owns Laborforce, Inc. (“Laborforce”). PSUMF ¶ 123; DPSUMF ¶ 123. M&K ESI is owned by a
corporation owned by Pilecki, Boucher, and trusts created for Meyering’s children. PSUMF ¶ 136; DPSUMF ¶ 136.
Jansma reports to Boucher, and Boucher and Pilecki report to Meyering. PSUMF ¶ 48; DPSUMF ¶ 48.
5
M&K Employee Solutions, LLC (“M&K ES Main”) is a Series Limited Liability Company formed under Illinois
law; each of the individual M&K ES entities are “Series” LLCs. DSUMF ¶¶ 8–9, 23–24; PDSUMF ¶¶ 8–9, 23–24.

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1, 2019, M&K Sales stop leasing employees from M&K ES and began leasing employees from

M&K ESI and Laborforce. PSUMF ¶ 122; DPSUMF ¶ 122.

3. M&K ES’s Obligations Under the Collective Bargaining Agreements

Three of the of the four M&K ES entities were parties to collective bargaining agreements

(the “CBAs”) with the Automobile Mechanics’ Local No. 701, International Association of

Machinists and Aerospace Workers, AFL-CIO (the “Union”). PSUMF ¶ 62; DPSUMF ¶ 62;

DSUMF ¶ 16. 6 The CBAs applied to M&K ES employees performing covered work at the M&K

Sales locations. PSUMF ¶ 63; DPSUMF ¶ 63; DSUMF ¶ 17.

Under the CBAs, the M&K ES entities were required to “remit contributions to the Fund

on behalf of all employees performing covered work.” PSUMF ¶ 64; DPSUMF ¶ 64; see also

M&K ES Alsip CBA, Shah Decl., Ex. 1-F to Pls.’ MSJ, ECF No. 160-17 at 13; M&K ES Joliet

CBA, Shah Decl., Ex. 1-H to Pls.’ MSJ, ECF No. 160-18 at 8; M&K ES Summit CBA, Shah Decl.,

Ex. 1-I to Pls.’ MSJ, ECF No. 160-19 at 9. The CBAs also contained provisions requiring the

entities to abide by the Trust Agreement and amendments thereto:

The I.A.M. Lodge and the Company adopt, and agree to be bound
by, and hereby assent to, the Trust Agreement, dated May 1960 as
amended, creating the I.A.M. National Pension Fund and the Plan
rules adopted by the Trustees of the I.A.M. National Pension Fund
in establishing and administering the foregoing Plan pursuant to the
said Trust Agreement, as currently in effect and as the Trust Plan
may be amended from time to time.

M&K ES Alsip CBA at 13–14; M&K ES Joliet CBA at 9; M&K ES Summit CBA at 9.

M&K ES Summit’s CBA imposed two additional provisions that were not imposed on the

other M&K ES entities. First, M&K ES Summit was required to remit contributions to the

6
The Fund provided separate employer I.D. codes for each M&K location. DSUMF ¶ 18; PDSUMF 18. The Fund
has not assigned a code for M&K ES Northern Illinois, and M&K ES Northern Illinois has never recognized the
Union. DSUMF ¶¶ 19, 30; PDSUMF ¶¶ 19, 30.

9
Automobile Mechanics’ Local No. 701 Union and Industry Pension Fund (the “701 Pension

Fund”) in addition to the Fund. PSUMF ¶ 66; DPSUMF ¶ 66. Second, M&K ES Summit’s CBA

required M&K ES Summit to remit contributions for covered work at “any additional facilities

opened during the term of [the] Agreement in McHenry, Lake, Cook, DuPage, Kane, and Will

Counties” in addition to work at the M&K Sales location in Summit, Illinois. M&K ES Summit

CBA at 3.

M&K ES Joliet stopped contributing to the Fund on March 31, 2017. PSUMF ¶ 65;

DPSUMF ¶ 65; M&K ES Summit stopped contributing on July 31, 2017. PSUMF ¶ 65; DPSUMF

¶ 65. M&K ES Alsip stopped contributing on December 31, 2018. PSUMF ¶ 65; DPSUMF ¶ 65.

By December 31, 2018, no M&K ES entity was obligated to contribute to the Fund. DSUMF ¶ 68.

4. M&K ES’s Relationship With M&K Sales

(i) Employee Leasing by M&K ES to M&K Sales

M&K Sales did not directly hire employees. PSUMF ¶ 52; DPSUMF ¶ 52. Instead, the

M&K Sales entities leased employees from their M&K ES counterparts pursuant to administrative

service agreements (the “ASAs”) between each M&K Sales and M&K ES entity. PSUMF ¶¶ 53–

54; DPSUMF ¶¶ 53–54; DSUMF ¶ 12. Under the ASAs, M&K ES only leased employees to M&K

Sales. PSUMF ¶ 55; DPSUMF ¶ 55. All M&K Sales employees were leased from M&K ES,

although M&K Sales may have occasionally hired temporary outside labor. PSUMF ¶ 55;

DPSUMF ¶ 55. The M&K ES entities were subject to contractual limitations on their ability to

lease employees to competitors of M&K Sales. PSUMF ¶ 56; DPSUMF ¶ 56. Other than leasing

10
employees to M&K Sales, M&K ES had no other sources of revenue. PSUMF ¶ 57; DPSUMF

¶ 57. 7

Employees leased by M&K ES performed all labor, operational, administrative, financial,

accounting, and legal services for the M&K Sales dealerships. PSUMF ¶ 58; DPSUMF ¶ 58. In

other words, M&K ES employees operated the M&K Sales dealerships in toto. See PSUMF ¶ 58;

DPSUMF ¶ 58. M&K Sales paid M&K ES for labor services under a “cost-plus arrangement,”

meaning M&K Sales reimbursed M&K ES for “all costs actually incurred,” including “wages,

fringe benefit fund contributions, interest for delinquencies, insurance, service provider fees, and

legal, accounting and other service provider fees and expenses,” in addition to a “$7,500 annual

administrative fee.” PSUMF ¶ 59; DPSUMF ¶ 59. Notwithstanding the withdrawal liability

dispute at the heart of this litigation, M&K ES received reimbursement from M&K Sales for every

expense incurred. PSUMF ¶ 60; DPSUMF ¶ 60. 8 Further, M&K Sales “agreed to indemnify M&K

ES against ‘all demands, liability, damages, costs, and expenses . . . arising from or in connection’

with the services provided by M&K ES.” PSUMF ¶ 61; DPSUMF ¶ 61.

(ii) Terms and Conditions of Employment at M&K ES

The terms and conditions of employment for M&K ES union employees were codified in

the CBAs entered into by the M&K ES entities and the Union. PSUMF ¶ 69; DPSUMF ¶ 69. Both

7
Boucher testified that he was “not . . . aware” of any other sources of revenue. DPSUMF ¶ 57. Defendants suggest
that therefore this fact is disputed but provide no evidence that M&K ES ever received revenue from any other sources.
This testimony is insufficient to create a factual dispute. The opposite, actually. It affirmatively indicates that the fact
is not disputed, because it establishes that the defendants knew of no information to the contrary. See Fed. R. Civ. P.
30(b)(6); see also U.S. ex rel. Emanuele v. Medicor Associates, 242 F. Supp. 3d 409, 422–23 (W.D. Pa. 2017)
(concluding from testimony that deponent was “not aware of any such contracts” that no such contracts existed).
8
Defendants suggest that this fact is disputed because Pilecki testified that he was “not . . . aware” of any instances
where M&K ES incurred expenses and M&K Sales refused to pay. Again, this testimony is not sufficient to create a
factual dispute and affirmatively indicates the opposite. See Fed. R. Civ. P. 30(b)(6); see also Medicor Associates, 242
F. Supp. 3d at 422–23.

11
union and non-union M&K ES employees were also subject to terms and conditions codified in

employee handbooks bearing M&K Sales branding. PSUMF ¶¶ 70–71; DPSUMF ¶¶ 70–71.

M&K ES did not own or lease real property at which it conducted work relating to its

leasing arrangements with M&K Sales, and it did not own chattel property such as “equipment,

computers, laptops, or cellphones.” PSUMF ¶ 72; DPSUMF ¶ 72. M&K ES employees worked at

M&K Sales dealerships on properties leased by M&K Sales. PSUMF ¶ 73; DPSUMF ¶ 73. These

locations bore M&K Truck Center logos, and while working there, M&K ES employees wore

uniforms bearing M&K Truck Center logos. PSUMF ¶¶ 74–75; DPSUMF ¶¶ 74–75.

M&K ES employees only used equipment provided by M&K Sales or personally owned

tools stored at M&K Sales locations. PSUMF ¶ 76; DPSUMF ¶ 76. M&K ES employees used

M&K Sales email addresses and communications systems. PSUMF ¶ 77; DPSUMF ¶ 77. M&K

ES employee records were stored at the M&K Sales Summit dealership. PSUMF ¶ 78; DPSUMF

¶ 78. All M&K ES employee assignments and discipline were given by or issued by other M&K

ES employees from the same location. DSUMF ¶¶ 36–37; PDSUMF ¶¶ 36–37.

Employees leased by M&K ES to M&K Sales were obligated to abide by the terms of

contracts between M&K Sales and manufacturers of vehicles sold and serviced by M&K Sales.

PSUMF ¶ 79; DPSUMF ¶ 79. This entailed that M&K ES employees maintain certifications and

comply with updated training requirements. PSUMF ¶ 79; DPSUMF ¶ 79.

(iii) Control by M&K Sales over M&K ES

In 2012, when Meyering formed M&K Sales Alsip, M&K Sales Joliet, and M&K Sales

Summit, Meyering served as President of M&K Sales, Pilecki served as Vice President of

Operations, Boucher served as Chief Financial Officer, and Jansma served as Treasurer. DSUMF

¶¶ 1–2; PDSUMF ¶¶ 1–2. That same year, Jansma formed the M&K ES entities, including M&K

12
ES Alsip, M&K ES Joliet, and M&K ES Summit, along with two other related entities. 9 PSUMF

¶ 80; DPSUMF ¶ 80. Jansma served as the sole owner of these entities until December 31, 2014,

when she sold them to Boucher for $500. PSUMF ¶ 81; DPSUMF ¶ 81; DSUMF ¶ 27. In 2018,

Boucher transferred an interest to his wife, Jodi Boucher, with whom he now shares 100%

ownership. PSUMF ¶ 82; DPSUMF ¶ 82. This means the M&K ES entities were owned, and are

currently owned, by officers of M&K Sales. 10

Meyering and Pilecki were responsible for ultimately approving and hiring M&K ES

general managers, who in turn were responsible for interviewing and hiring subordinate M&K ES

employees. PSUMF ¶¶ 68, 83; DPSUMF ¶¶ 68, 83. Pilecki was involved in employee hiring and

firing, although others, including the general managers approved and hired by Meyering and

Pilecki, also had discretion to hire and fire employees. PSUMF ¶ 84; DPSUMF ¶ 84. 11 General

9
The two related entities are M&K ES Main and M&K Employee Solutions, LLC – Illinois Leasing (“M&K Illinois
Leasing”). PSUMF ¶ 80; DPSUMF ¶ 80.
10
As the Court already explained, Jansma and Boucher currently serve as de facto officers of M&K Sales, although
they are formally employed by M&K ESI. See PSUMF ¶¶ 44–47; DPSUMF ¶¶ 44–47.
11
Defendants submitted a supplemental affidavit in which Boucher declared that “[a]ll hiring decisions of an M&K
[ES e]ntity were made by another employee of that same M&K [ES e]ntity,” and “[a]ll layoff or termination decisions
of an M&K [ES] entity were made by another employee of that same [entity].” Boucher Decl., Ex. 12 to Defs.’ MSJ,
ECF No. 161-14 at 3. Defendants submitted a supplemental affidavit in which Pilecki declared that “[a]ll layoff or
termination decisions of an M&K [ES] entity were made by another employee of that same [entity],” and “[e]ach
Truck Sales location . . . operated independently of the other locations.” Pilecki Decl., Ex. 2 to Defs.’ MSJ, ECF No.
161-4 at 4. Some ink has been spilled by the parties over whether these affidavits should be disregarded under the
“sham affidavit rule.” Pls.’ Opp’n to M&K ES’s MSJ (“Pls.’ Opp’n to M&K ES”), ECF No. 164 at 33; M&K ES’s
Reply to Trustees’ Opp’n to M&K ES’s MSJ (“M&K ES’s Reply”), ECF No. 179 at 19–26. The Court agrees with
the Trustees that these declarations should be disregarded. The sham affidavit rule “precludes a party from creating
an issue of material fact by contradicting prior sworn testimony unless the shifting party can offer persuasive reasons
for believing the supposed correction is more accurate than the prior testimony.” Daniel v. Johns Hopkins University,
118 F. Supp. 3d 312, 318 (D.D.C. 2015) (quoting Galvin v. Eli Lilly and Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007)).
Defendants have not offered persuasive reasons for belatedly proffering these conclusory declarations. Defendants
assert that the declarations clarify and address undeveloped deposition topics and do not “clearly contradict” prior
sworn testimony and are otherwise consistent with the record evidence. M&K ES’s Reply at 20. However, it is not
the law of this Circuit that the Court must consider a supplemental affidavit unless it “clearly contradict[s]” prior
sworn testimony. Contra id. at 20. Instead, the Court has “broad discretion with respect to discovery,” and an
“important consideration” in choosing whether to disregard a supplemental affidavit is whether it contradicts prior
testimony or record evidence without justification. See Eli Lilly, 488 F.3d at 1030. In any event, the declarations
quoted above are clearly contradicted by prior sworn testimony and record evidence without justification. Boucher
earlier testified that he “can’t speak to” whether Pilecki, who was not an M&K ES employee, was “involved in the

13
managers reported to Pilecki, who “conducted their performance reviews, set their compensation,

and dictated when they could be away from the dealerships.” PSUMF ¶ 85; DPSUMF ¶ 85. Pilecki

both hired and supervised LaJeunesse, who served as the director of human resources for all four

M&K ES entities. PSUMF ¶ 86; DPSUMF ¶ 86. LaJeunesse informed Pilecki “of all hiring and

firing decisions of M&K ES employees, grievances, and workers’ compensation claims.” PSUMF

¶ 87; DPSUMF ¶ 87.

Meyering, Pilecki, and LaJeunesse were involved in labor negotiations between the M&K

ES entities and the Union. PDSUMF ¶ 53. Meyering was specifically involved in negotiations

concerning economics, i.e., the amount of wages and fringe benefits to be paid to M&K ES

employees. PSUMF ¶ 69; DPSUMF ¶ 69. Meyering had authority to approve or reject proposals.

PSUMF ¶ 88; DPSUMF ¶ 88; DSUMF ¶ 54; PDSUMF ¶ 54; see also Meyering Dep., Ex. 1 to

Defs.’ MSJ, ECF No. 161-3 at 46–47. 12

interview process [for M&K ES employees]” because Boucher was not “a part of all [the] interviews.” Chad Boucher
Dep. A, Ex. 1 to Pls.’ Opp’n to Defs.’ MSJ, ECF No. 164-3 at 39–40. But despite his earlier ignorance, Boucher now
declares definitively, and without explanation, that all M&K ES hiring decisions were made by M&K ES employees.
Boucher Decl. at 3. George P. LaJeunesse (“LaJeunesse”), an M&K ES employee, gave uncontested testimony that
he was hired by Pilecki to serve as Human Resources manager for the M&K ES entities. LaJeunesse Dep., Ex. 15 to
Defs.’ MSJ, ECF No. 161-17 at 13–15. And defendants cannot dispute that Meyering and Pilecki interviewed and
hired M&K ES general managers. PSUMF ¶¶ 68, 83; DPSUMF ¶¶ 68, 83. With respect to Pilecki’s declaration that
all layoff or termination decisions were made by M&K ES employees, LaJeunesse earlier testified that Pilecki was
the “final decision maker” with respect to terminating employees. Id. at 17. Pilecki did not deny that he was a decision
maker and in fact conceded his involvement in all manner of personnel decisions, including terminations. Pilecki Dep.,
Ex. 1 to DPSUMF, ECF No. 170-1 at 21–23. Finally, the declaration that each M&K Sales location operated
independently of the other locations is obviously contradicted by the undisputed evidence of common ownership,
management, service providers, employee terms and conditions, and shared job functions recounted throughout this
opinion. Neither affidavit proffers a reason that could justify its existence. The Court harbors no doubt that these
declarations were prepared in a spurious attempt to create “an issue of material fact” and thereby preclude summary
judgment. See Eli Lilly, 488 F.3d at 1030. In any event, these bare and belated declarations are immaterial and their
omission has no bearing on the Court’s analysis.
12
Defendants contend that this is disputed, yet concede that Meyering was involved in the negotiations, and that
LaJeunesse testified that his understanding was that Meyering had the final say. PSUMF ¶ 88; DPSUMF ¶ 88.
Moreover, Meyering himself testified that he sat in on bargaining sessions because it was more efficient “than
somebody else negotiating it and then bringing it to me for approval.” Meyering Dep. at 46–47 (emphasis added).
Defendants cite no evidence to the contrary.

14
The law firm of Mika, Myers, Becket, & Jones PEC (“Mika Myers”) provided legal

services to both M&K Sales and M&K ES. PSUMF ¶ 94; DPSUMF ¶ 94. Mika Myers drafted the

ASA between M&K Sales Alsip and M&K ES Alsip, as well as M&K ES’s operating agreement.

PSUMF ¶ 96; DPSUMF ¶ 96. The ASAs between M&K Sales and M&K ES were not negotiated

or renegotiated. PSUMF ¶ 97; DPSUMF ¶ 97. Additionally, M&K ES retained Donald J. Vogel,

Esq. (“Vogel”) to provide legal services. PSUMF ¶ 98–100; DPSUMF ¶ 98–100. Vogel led

collective bargaining negotiations on behalf of M&K ES. PSUMF ¶ 100; DPSUMF ¶ 100.

M&K ES and M&K Sales shared other services. Both M&K ES and M&K Sales received

accounting services from Crowe Horwath LLP (“Crowe”). PSUMF ¶ 101; DPSUMF ¶ 101. Both

M&K ES and M&K Sales maintained bank accounts at Fifth Third Bank. PSUMF ¶ 102; DPSUMF

¶ 102. Both M&K ES and M&K Sales were registered at the same address. PSUMF ¶ 103;

DPSUMF ¶ 103. All M&K ES and M&K Sales entities operated out of the same physical locations,

namely the M&K Sales dealerships. PSUMF ¶ 103; DPSUMF ¶ 103.

5. Creating M&K ES Northern Illinois

M&K Sales Northern Illinois was created on June 6, 2013, to purchase assets of an existing

dealership located in Cook County, Illinois. DSUMF ¶¶ 20, 123; PDSUMF ¶¶ 20, 123. M&K ES

Northern Illinois was formed by Jansma in July 2013 to hire employees from the former dealership

and lease them to the new M&K Sales Northern Illinois dealership. DSUMF ¶¶ 21–22; PDSUMF

¶¶ 21–22.

M&K ES Northern Illinois did not have a CBA in place with the Union. DSUMF ¶ 26;

PDSUMF ¶ 26. However, assuming the M&K ES Summit CBA applied to employees at M&K

Sales Northern Illinois, M&K ES Northern Illinois employees performed 226,952 hours of labor

for which M&K ES was required to remit contributions to the Fund. PSUMF ¶¶ 105–06; DPSUMF

15
¶¶ 105–06. 13 At no point were contributions remitted for M&K ES Northern Illinois employees.

PSUMF ¶ 113; DPSUMF ¶ 113.

Steve Waters (“Waters”), who was an employee of M&K ES Northern Illinois, served first

as general manager of M&K Sales Northern Illinois before being promoted to Regional Vice

President of Operations. PSUMF ¶ 108; DPSUMF ¶ 108. As Regional Vice President, Waters was

responsible for overseeing and providing guidance to general managers of the M&K Sales

dealerships in Illinois, including M&K Sales Summit and M&K Sales Northern Illinois. PSUMF

¶ 108; DPSUMF ¶ 108. David Wilkey (“Wilkey”), who was the sales manager at M&K Sales

Summit, supervised two M&K ES Summit employees while they worked out of the M&K Sales

Northern Illinois location. PSUMF ¶ 109; DPSUMF ¶ 109. And, LaJeunesse, who was an

employee of M&K ES Summit, was “in charge” of human resources for both locations. PSUMF

¶ 110; DPSUMF ¶ 110. Payroll, billing, and bank accounts for MK ES Northern Illinois and M&K

ES Summit were handled by Laura Schneider (“Schneider”) and Kathy Milarg (“Milarg”), both of

whom were employed by M&K ES Summit. PSUMF ¶ 111; DPSUMF ¶ 111. 14 All M&K ES

entity personnel records, including records for M&K ES Northern Illinois and M&K ES Summit,

13
The Trustees have provided evidence of the categories of work covered by the M&K ES Summit CBA, the
categories of work performed by M&K ES Northern Illinois employees, hours worked by M&K ES Northern Illinois
employees, and contributions, interest, and liquidated damages calculations assuming the M&K ES Summit CBA
actually applies. M&K ES Summit CBA at 6–9, 13–17; Schneider Dep., Shah Decl., Ex. 8 to Pls.’ MSJ, ECF No. 160-
27 at 33–36; Defs.’ Resp. to Pls.’ Third Set of Requests for Admissions, Shah Decl., Ex. 34 to Pls.’ MSJ, ECF No.
160-53 at 3–35; Summary of Damages, Shah Decl., Ex. 35 to Pls.’ MSJ, ECF No. 160-54 at 2–10. Defendants claim
“[t]here is no cognizable way to understand Plaintiffs’ cites,” but the Court understands them just fine. Contra
DPSUMF ¶ 106. Defendants have submitted no evidence to the contrary (though, of course, they dispute that the
M&K ES Summit CBA covers work performed by M&K ES Northern Illinois employees, which is one of the legal
issues presently before the Court), and therefore this factual contention is not disputed.
14
Defendants purport to dispute this point, but Schneider testified that she and Milarg were employed by M&K ES
Summit and defendants have offered no evidence to the contrary. Schneider Dep., Ex. 14 to Defs.’ MSJ, ECF No.
161-16 at 17–18, 59.

16
were stored next to Laura Schneider’s office at the M&K Sales Summit dealership location.

PSUMF ¶ 112; DPSUMF ¶ 112. 15

6. Chad and Jodi Boucher’s Home Flipping Operation

Chad Boucher and his wife Jodi Boucher (the “Bouchers”) owned M&K ES Alsip. PSUMF

¶ 20; DPSUMF ¶ 20. During the period that the Bouchers owned M&K ES Alsip, they also

engaged in the practice of “buying [homes], making improvements, and then reselling [the

homes],” which is colloquially known as “flipping homes.” PSUMF ¶ 21; DPSUMF ¶ 21.

The Bouchers used personal funds “to purchase homes to ‘flip’ in their own name.”

PSUMF ¶ 23; DPSUMF ¶ 23. After completing a sale, the Bouchers would use the proceeds to

pay any expenses and purchase another home to “flip.” PSUMF ¶ 24; DPSUMF ¶ 24. Jodi Boucher

served as the “brains of the operation” and personally identified candidate properties, negotiated

their purchase and sale, planned improvements and renovations, retained contractors, conducted

demolition, oversaw contractor work, and paid contractors and suppliers. PSUMF ¶ 25; DPSUMF

¶ 25. Jodi typically spent every day on-site at the renovated properties making improvements. Pls.’

Statement of Additional Undisputed Material Facts (“PASUMF”), ECF No. 163-1 ¶ 63; Bouchers’

Resp. to PASUMF (“BPASUMF”), ECF No. 178 ¶ 63. Chad Boucher personally performed

landscaping at the properties, reconciled costs, and prepared and filed the Bouchers’ joint tax

returns. PSUMF ¶ 26; DPSUMF ¶ 26.

15
Defendants submitted supplemental affidavits in which Pilecki and Boucher both declared that “[e]mployees did
not transfer between the different Truck Sale entity locations or [M&K ES e]ntities,” “[n]o . . . Summit employee
worked at M&K [ES Northern Illinois] and vice versa,” and “[n]o . . . Summit employee supervised any M&K [ES
Northern Illinois] employee and vice versa.” Pilecki Decl. at 4–5; Boucher Decl. at 3–4. The Court will disregard
these conclusory declarations under the previously recounted “sham affidavit rule” because, among other reasons,
they are clearly contradicted by prior testimony and record evidence establishing that certain M&K ES employees
(such as LaJeunesse, Milarg, Waters, and Wilkey) worked, supervised, or transferred across entities. See, e.g., PSUMF
¶¶ 108–12; DPSUMF ¶¶ 108–12. The Court has already made clear what it thinks of these affidavits and is satisfied
upon review of the record and their inconsistencies therewith that these affidavits were prepared for the purpose of
manufacturing spurious factual disputes and avoiding summary judgment. See Eli Lilly, 488 F.3d at 1030. In any
event, the Court does not rely on their omission.

17
The Bouchers testified that they hoped to earn profit—not incur losses—on the homes that

they renovated. Chad Boucher Dep. B, Ex. 4 to Pls.’ MSJ, ECF No. 164-23 at 20–21; Jodi Boucher

Dep., Ex. 5 to Pls.’ MSJ, ECF No. 164-24 at 5, 11. Chad Boucher also affirmed that he and his

wife’s activities constituted a business. Chad Boucher Dep. B at 20–21. The Bouchers reported

the gains from their home flipping operation on their 2017 tax return on “Schedule D – Capital

Gains and Losses, Part I, Short-Term Capital Gains and Losses – Assets Held One Year or Less.”

Bouchers’ Statement of Undisputed Material Facts (“BSUMF”), ECF No. 162-2 ¶ 33; Pls.’ Resp.

to BSUMF (“PBSUMF”), ECF No. 163-1 ¶ 33. The Bouchers did not file the gains from the

operation on “Schedule C – Profit or Loss from Business” or “Schedule E – Supplemental Income

and Loss.” BSUMF ¶ 33; PBSUMF ¶ 33.

The Bouchers purchased and sold four homes in total between 2016 and the end of 2018.

PSUMF ¶¶ 28–31; DPSUMF ¶¶ 28–31. They purchased their first home on June 9, 2016 for

$98,000 and sold it for $209,900 on February 27, 2017. PSUMF ¶ 28; DPSUMF ¶ 28. They

purchased their second home on March 30, 2017 for $127,500 and sold it for $227,000 on

November 6, 2017. PSUMF ¶ 29; DPSUMF ¶ 29. They purchased their third home on November

20, 2017 for $96,000 and sold it for $246,000 on August 7, 2018. PSUMF ¶ 30; DPSUMF ¶ 30.

They purchased their fourth home on September 21, 2018 for $105,000, which was sold for

$192,000 on March 6, 2019. PSUMF ¶ 31; DPSUMF ¶ 31. The Bouchers transferred the fourth

home to M&K ES Main on December 28, 2018 for $1.00, before it was sold in 2019. 16 PASUMF

¶ 52; BPASUMF ¶ 52.

16
As discussed below, the Court will permit defendants leave to correct their responses to plaintiffs’ fourth set of
requests for admissions. Defs.’ Mot. for Leave to Amend Responses (Defs.’ Mot. for Leave), ECF No. 176. The
proposition stated by the Court incorporates the defendants’ amended response.

18
The Bouchers continued renovating and flipping homes after the end of 2018. PASUMF

¶¶ 53–60; BPASUMF ¶¶ 53–60. On August 16, 2019, Chad Boucher established CJKA Properties,

LLC (“CJKA”). PASUMF ¶ 54; BPASUMF ¶ 54. CJKA purchased and resold several homes,

which Jodi Boucher renovated, between September 2019 and August 2021. PASUMF ¶¶ 56–60;

BPASUMF ¶¶ 56–60. By 2020, the Bouchers reported Jodi’s occupation on their federal income

tax return as “home remodeling.” PASUMF ¶¶ 55; BPASUMF ¶¶ 55. The Bouchers’ 2020 tax

return also contains a “Schedule C – Profit or Loss from Business” form for CJKA’s “home

remodeling” activities and reported tens of thousands of dollars in net profit. PASUMF ¶ 68;

BPASUMF ¶¶ 68.

7. Termination of the M&K ES CBAs

Meyering was “aware of a number of trucking companies or trucking-related companies

over the years that appeared to [him] to be good companies [that went] went out of business[, and]

attribute[d] the[ir] failure . . . to withdrawal liability.” PSUMF ¶ 114; DPSUMF ¶ 114. At the time

Meyering purchased the dealerships that became M&K Sales Alsip, M&K Sales Joliet, and M&K

Sales Summit, Meyering knew that both the Fund and the 701 Pension Fund were underfunded.

PSUMF ¶ 115; DPSUMF ¶ 115. Then, during bargaining negotiations with the Union, the M&K

ES entities secured a “free look,” which allowed them to participate in the Fund “without incurring

withdrawal liability if the obligation to contribute was terminated within five years.” PSUMF

¶ 116; DPSUMF ¶ 116. Meyering reviewed withdrawal estimates in the lead up to negotiations

with the Union and requested a withdrawal liability estimate in advance of negotiations on at least

one occasion. PSUMF ¶ 117; DPSUMF ¶ 117.

M&K ES Joliet and M&K ES Summit terminated their CBAs in 2017 within the “free

look” period. PSUMF ¶ 118; DPSUMF ¶ 118. Meyering supported terminating the CBAs at that

19
time because it meant the entities would not be on the hook for withdrawal liability. PSUMF ¶ 118;

DPSUMF ¶ 118. However, M&K ES Alsip failed to terminate its CBA before the expiry of the

“free look” window. PSUMF ¶ 120; DPSUMF ¶ 120. M&K ES Alsip terminated its obligation to

contribute to the Fund on December 31, 2018. PSUMF ¶ 120; DPSUMF ¶ 120.

8. Employee Transfers from M&K ES to Laborforce and M&K ESI

M&K Sales stopped leasing employees from M&K ES on December 31, 2018. PSUMF

¶ 121; DPSUMF ¶ 121. The next business day, M&K Sales began leasing employees from

Laborforce and M&K ESI. PSUMF ¶ 122; DPSUMF ¶ 122.

Laborforce was formed by Jansma on October 25, 2018; Jansma serves as Laborforce’s

sole owner. PSUMF ¶ 123; DPSUMF ¶ 123. Laborforce entered into collective bargaining

agreements with the Union covering employees working at M&K Sales Alsip and M&K Sales

Summit in December 2018 and February 2019 respectively. PSUMF ¶¶ 124–25; DPSUMF

¶¶ 124–25. Neither CBA requires Laborforce to contribute to the Fund or the 701 Pension Fund.

PSUMF ¶ 126; DPSUMF ¶ 126. Vogel served as chief negotiator with the Union for these CBAs.

PSUMF ¶ 127; DPSUMF ¶ 127. Meyering, Pilecki, and LaJeunesse were also involved in the

negotiations. PSUMF ¶ 127; DPSUMF ¶ 127.

Laborforce “hired all 127 union employees previously employed by M&K ES

Alsip . . . and Summit.” PSUMF ¶ 128; DPSUMF ¶ 128. Laborforce then entered into ASAs with

M&K Sales Alsip and M&K Sales Summit and began leasing the former M&K ES employees to

them. PSUMF ¶¶ 129–30; DPSUMF ¶¶ 129–30. The former M&K ES employees “performed the

same work, from the same locations, and . . . reported to the same supervisors as before.” PSUMF

¶ 131; DPSUMF ¶ 131. However, Laborforce was not obligated to remit contributions to the Fund

for work performed by Laborforce employees. PSUMF ¶ 126; DPSUMF ¶ 126. Jansma believed

20
there was “no risk” of having to pay withdrawal liability under this arrangement. PSUMF ¶ 132;

DPSUMF ¶ 132.

M&K ESI “hired all of the non-union employees previously employed by M&K ES

Alsip . . . and Summit . . . and leased them to the corresponding M&K Sales entity.” PSUMF ¶ 133;

DPSUMF ¶ 133. M&K ESI also hired the non-union employees previously employed by M&K

ES Joliet and M&K ES Northern Illinois. PSUMF ¶ 134; DPSUMF ¶ 134. M&K ESI was owned

by Meyering until late 2017, when its ownership was transferred to a corporation owned by Pilecki,

Boucher, and trusts created for Meyering’s children. PSUMF ¶¶ 135–36; DPSUMF ¶¶ 135–36.

M&K ESI never arranged ASAs with the M&K Sales dealerships in Illinois. PSUMF ¶ 137;

DPSUMF ¶ 137. The former M&K ES employees “performed the same work, from the same

locations, for the same wages and benefits, and reported to the same supervisors as before.”

PSUMF ¶ 138; DPSUMF ¶ 138.

Mika Meyer provides legal services for Laborforce. PSUMF ¶ 140; DPSUMF ¶ 140. Vogel

provides legal services for Laborforce and M&K ESI. PSUMF ¶ 140; DPSUMF ¶ 140. Crowe

provides tax and accounting services for Laborforce and M&K ESI. PSUMF ¶ 141; DPSUMF

¶ 141. LaJeunesse became an employee of M&K ESI and continued his previous duties, which

included overseeing human resources for all the M&K Sales dealerships in Illinois. PSUMF ¶¶ 86,

143; DPSUMF ¶¶ 86, 143. Laborforce maintains a bank account at Fifth Third Bank. PSUMF

¶ 144; DPSUMF ¶ 144. And in some instances, M&K ESI honored accrued vacation days and

“grandfathered accrued retirement benefits” for its former M&K ES non-union employees.

PSUMF ¶ 145; DPSUMF ¶ 145.

21
9. The Fund’s Withdrawal Liability Assessments

The Fund sent Vogel and M&K ES a demand for $611,110 in partial withdrawal liability

stemming from M&K ES Joliet and M&K ES Summit on June 26, 2018. PSUMF ¶ 146; DPSUMF

¶ 146. That same day, the Fund provided Vogel and M&K ES with an estimate that if M&K ES

Alsip were to completely withdraw from the Fund, it would owe $5,829,629 in withdrawal

liability. PSUMF ¶ 147; DPSUMF ¶ 147. Similarly, on October 11, 2018, the 701 Pension Fund

assessed M&K ES Summit with $6,215,168 in complete withdrawal liability. PSUMF ¶ 148;

DPSUMF ¶ 148. Consequently, “there were a number of people that were concerned that M&K

[ES] could[ not] survive” an assessment of withdrawal liability. PSUMF ¶ 149; DPSUMF ¶ 149.

After M&K ES Alsip ceased its obligation to contribute to the Fund on December 31, 2018,

the Trustees withdrew its earlier assessment against M&K ES for $611,110 in partial withdrawal

liability. PSUMF ¶ 150; DPSUMF ¶ 150. On June 14, 2019, the Fund notified M&K ES Alsip that

it was assessing it “$6,158,482 in withdrawal liability [stemming from its complete withdrawal]

payable in quarterly installments commencing August 13, 2019.” PSUMF ¶ 151; DPSUMF ¶ 151;

DSUMF ¶ 69. M&K ES Alsip requested a review of that assessment on September 10, 2019, which

the Trustees denied. PSUMF ¶ 152; DPSUMF ¶ 152; DSUMF ¶ 71. M&K ES Alsip then

commenced arbitration on November 20, 2019. PSUMF ¶ 152; DPSUMF ¶ 152; DSUMF ¶ 71.

M&K ES Alsip did not fulfill its first two quarterly payment obligations while it challenged

the Fund’s withdrawal liability assessment. PSUMF ¶ 153; DPSUMF ¶ 153.

10. Events Occurring During Litigation

The Trustees commenced this suit on February 14, 2020 to recover the two failed quarterly

payments under the “pay now, dispute later” rule. Compl., ECF No. 1.

22
On March 19, 2020, the Court ordered the defendants to pay $705,442 to the Fund. ECF

No. 22 (the “March 2020 Injunction”). On March 27, 2020, Vogel responded to a letter from the

Trustees “demand[ing] payment from M&K Employee Solutions, LLC” for $705,422.00 by

stating “that M&K is financially unable to make any payment to the Trustees.” M&K Unable to

Pay Letter, Shah Decl., Ex. 2 to Pls.’ MSJ, ECF No. 160-21 at 2; see also PSUMF ¶ 154; DPSUMF

¶ 154. On September 10, 2020, the Trustees accelerated the withdrawal liability associated with

M&K ES Alsip by notifying it that “there was a ‘substantial likelihood’ that M&K ES Alsip would

be unable to pay the withdrawal liability, declar[ing] M&K ES Alsip in default, accelerat[ing] the

liability, and demand[ing] immediate payment of the entire $6,158,482 outstanding amount.”

PSUMF ¶ 155; DPSUMF ¶ 155; DSUMF ¶¶ 72, 80.

After the Trustees commenced the instant case, defendants made two payments totaling

$11,487 to the Fund. PSUMF ¶ 156; DPSUMF ¶ 156; DSUMF ¶ 82–83. On July 13, 2021, an

arbitrator ordered that the Fund’s withdrawal liability assessment be recalculated. PSUMF ¶ 157;

DPSUMF ¶ 157. This resulted in a reduction in the withdrawal liability from $6,158,482 to

$1,797,781. PSUMF ¶ 158; DPSUMF ¶ 158. On July 20, 2021, the Fund sent a letter to defendants

stating:

Petitioner’s recalculated withdrawal liability is $1,797,781, and as a
result of the Fund’s September 10, 2020 acceleration of the liability,
$1,786,294—the entire amount of the recalculated liability, less the
$11,487 in interim payments made to date—is due immediately.

DSUMF ¶ 88; PDSUMF ¶ 88. On August 16, 2021, Vogel wired $1,786,294 from his attorney

trust account to the Fund. PSUMF ¶ 159; DPSUMF ¶ 159.

On September 28, 2022, the Court vacated the arbitrator’s order that the Fund recalculate

the withdrawal liability assessment. Arbitration Decision, 2022 WL 4534998, at *21. The Fund

23
served a second revised withdrawal liability assessment for $6,078,739 on October 24, 2022. 17

PDSUMF ¶ 162.

C. Procedural History

The Trustees filed their complaint on February 14, 2020. Compl. In addition to naming

M&K ES Alsip, their complaint named M&K ES Main, M&K Illinois Leasing, M&K ES Joliet,

M&K ES Summit, and M&K ES Northern Illinois as “trade[s] or business[es] under common

control” with M&K ES Alsip when it withdrew from the Fund. Id. ¶ 27–31. Along with their first

complaint, the Trustees moved for a preliminary injunction. ECF No. 2. The motion asked for the

immediate payment of $705,442, which was the sum of the first two unpaid withdrawal-liability

payments, plus “liquidated damages, interest, attorneys’ fees, and costs, in an amount to be

determined.” ECF No. 2-1 at 8. Defendants did not oppose, and the Court granted the first

preliminary injunction. ECF No. 22. Despite this Court’s order, M&K ES Alsip made no interim

payments. IAM II, 2022 WL 594539, at *3.

On October 1, 2020, the Trustees filed a Second Amended Complaint which added the

M&K Sales entities as defendants: M&K Sales Alsip, M&K Sales Joliet, M&K Sales Summit, and

M&K Sales Northern Illinois. Second Am. Compl., ECF No. 45. The Trustees alleged that each

M&K Sales entity was either a single employer, joint employer, or alter-ego of the corresponding

M&K ES entity, constructed to insulate the former from the “rights and obligations of the latter

under their collective bargaining agreements with various local unions.” Id. ¶ 4.

On March 11, 2021, the Trustees filed a Third Amended Complaint, which added

defendant Laborforce as M&K ES’s alleged successor. Third Am. Compl., ECF No. 56.

17
Trustees served this revised assessment eighteen days after they filed their motion for summary judgment. See Pls.’
MSJ, ECF No. 160 (filed October 7, 2022).

24
Defendants did not pay the accelerated withdrawal liability or any interim payments, and

so the Trustees moved for a second preliminary injunction. ECF No. 62. The second injunction,

entered a year after the first, ordered defendants—including Laborforce as successor—to pay the

full $6,158,482 of withdrawal liability assessed by the Trustees. ECF No. 70 (“the April 2021

Injunction”). After that injunction, defendants made two small payments to the Fund—$1,000 on

April 27, 2021, and $10,487 on May 20, 2021. IAM II, 2022 WL 594539, at *4. But defendants

refused to immediately pay the full amount of the withdrawal liability due, as ordered. Id. Instead,

defendants appealed the preliminary injunction to the D.C. Circuit. ECF No. 85. During the same

period, Laborforce separately moved to dismiss for failure to state a claim. Laborforce’s Mot. to

Dismiss, ECF No. 71.

The concurrent arbitration that M&K ES Alsip initiated on November 19, 2019, came to a

head on July 13, 2021, when an arbitrator determined that the Fund had erred in its assessment and

ordered the Fund to recalculate the proper amount of withdrawal liability. IAM II,

2022 WL 594539, at *4. The Fund recalculated the withdrawal liability assessment to the amount

of $1,797,781. Id. On August 16, 2021, over two years after it received notification from the

Trustees regarding withdrawal liability, the M&K ES entities made their first substantial payment

by wiring the Fund $1,786,294. Id. When combined with small payments the M&K ES Entities

had made in the past, this substantial payment meant the defendants had now paid an amount

equivalent to the recalculated principal withdrawal liability. Id.

After the arbitrator’s determination, both parties filed motions. Defendants jointly moved

for partial summary judgment. ECF No. 100. The Trustees moved for leave to file a Fourth

Amended Complaint to add M&K ESI as M&K ES’s alleged successor. ECF No. 91. The Court

could not act on these and other motions filed by the parties until the defendants’ appeal of the

25
April 2021 Injunction to the D.C. Circuit was completed. IAM II, 2022 WL 594539, at *4. After

the Circuit remanded to this Court and dismissed the appeal as moot, the Court ruled on the parties’

motions. Order, Trs. of the IAM Nat’l Pension Fund, Case No. 21-7072 (D.C. Cir. Dec. 23, 2021);

Order, Trs. of the IAM Nat’l Pension Fund, Case No. 21-7072 (D.C. Cir. Jan. 11, 2022). The Court

denied the defendants’ motion for partial summary judgment and Laborforce’s motion to dismiss.

IAM II, 2022 WL 594539, at *15. The Court also granted the Trustees motion for leave to amend

their complaint; the Trustees filed a Fourth Amended Complaint on March 1, 2022. Id.; see also

Fourth Am. Compl., ECF No. 117.

On June 22, 2022, the Trustees filed a Fifth Amended Complaint, which added defendants

Chad and Jodi Boucher for allegedly running “an unincorporated trade or business . . . under

common control with M&K [ES] Alsip.” Fifth Am. Compl., ECF No. 143 ¶¶ 98–99. The Trustees’

Fifth Amended Complaint contains ten counts, eight of which are the subject of the summary

judgment motions currently pending before the Court. Id. ¶¶ 52–101.

On September 28, 2022, the Court issued a Memorandum Opinion in a related case in

which it vacated the arbitrator’s award directing the Fund to recalculate the withdrawal liability

assessment. Arbitration Decision, 2022 WL 4534998, at *21. The parties filed the instant motions

for summary judgment approximately one week later.

On April 10, 2023, the defendants noticed the Court that the arbitrator had delivered an

arbitration award in M&K ES’s favor. ECF No. 188. The arbitrator’s award concluded that the

defendants’ previous payments should be credited toward withdrawal liability instead of accrued

interest. ECF No. 188-1. That issue is currently before this Court on summary judgment and was

fully briefed by the parties before the arbitrator issued his award. The Trustees substantively

26
responded and noticed the Court that they had initiated a new action seeking to vacate the

arbitrator’s award. ECF No. 189. 18 The defendants submitted a brief reply. ECF No. 190.

D. Motions Presently Before the Court

There are five motions presently before the Court.

On October 7, 2022, the Trustees moved for summary judgment on Counts I, II, III, IV,

VI, VII, VIII, and X. Pls.’ MSJ, ECF No. 160. 19 The Trustees seek judgment that:

(1) M&K ES Alsip is liable for unpaid withdrawal liability, 20 interest, and liquidated

damages (“Count I”);

(2) M&K ES Main, M&K Illinois Leasing, M&K ES Joliet, M&K ES Summit, and M&K

ES Northern Illinois are jointly and severally liable for the claims asserted in Counts I and

III under the theory that they are “trades or businesses under common control with M&K

ES Alsip” (“Count II”);

(3) M&K ES Summit is liable for unpaid contributions, interest, and liquidated damages

(“Count III”);

(4) Each M&K Sales entity is jointly and severally liable for the claims asserted in Counts

I and III under the theory that each entity is a “[s]ingle employer with the corresponding

M&K ES entity” (“Count IV”);

18
That action, Civil Case No. 23-cv-991, is stayed pending the Court’s resolution of the parties’ pending motions for
summary judgment. No. 23-cv-991, ECF No. 18.
19
Trustees do not seek summary judgment with respect to Count V. Pls.’ MSJ at 29 n.3. Trustees previously dismissed
the entity-defendants named in Count IX pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). ECF No. 154.
20
The Trustees’ claim reflects the second revised withdrawal liability assessment, which was served on defendants
eighteen days after Trustees filed their motion for summary judgment. See Pls.’ Reply to Defs.’ Opp’n (“Pls.’ Reply”),
ECF No. 174 at 10 & n.3. The parties’ earlier summary judgment briefing does not reflect this amount.

27
(5) Each M&K Sales entity is jointly and severally liable for the claims asserted in Counts

I and III under the theory that each entity is an “[a]lter ego with the corresponding M&K

ES entity” (“Count VI”);

(6) Laborforce is jointly and severally liable for the claims asserted in Counts I and III

under a theory of “successor [liability] to M&K ES Alsip and Summit” (“Count VII”);

(7) M&K ESI is jointly and severally liable for the claims asserted in Counts I and III under

a theory of “successor [liability] to M&K ES Joliet and Northern Illinois” (“Count VIII”);

and

(8) Chad and Jodi Boucher are jointly and severally liable for the claims asserted in Counts

I and III under the theory that they operated a “trade[] or business[] under common control

with M&K ES Alsip” (“Count X”).

Id. at 28–29. The defendants separately opposed. Bouchers’ Opp’n to Pls.’ MSJ (“Bouchers’

Opp’n”), ECF No. 165; M&K ES’s Opp’n to Pls.’ MSJ (“M&K ES’s Opp’n”), ECF No. 166;

M&K Sales’s Opp’n to Pls.’ MSJ (“M&K Sales’s Opp’n”), ECF No. 167; Laborforce’s Opp’n to

Pls.’ MSJ (“Laborforce’s Opp’n”), ECF No. 168; M&K ESI’s Opp’n to Pls.’ MSJ (“M&K ESI’s

Opp’n”), ECF No. 169. Trustees replied. Pls.’ Reply.

On October 7, 2022, M&K ES moved for summary judgment on Counts I, II, and III. M&K

ES’s MSJ, ECF No. 161-1. M&K ES seeks summary judgment with respect to Counts I and II

regarding the method of calculating accrued interest and applying prior payments. Id. at 7. M&K

ES seeks a judgment that M&K ES Summit is not liable for delinquent contributions under Count

III. Id. at 8. Trustees opposed. Pls.’ Opp’n to M&K ES. M&K ES replied. M&K ES’s Reply.

On October 7, 2022, the Bouchers moved for summary judgment on Count X. Bouchers’

MSJ, ECF No. 162-1. The Bouchers seek a judgment that they cannot be held liable for the

28
withdrawal liability of the M&K ES defendants. Id. at 5–6. Trustees opposed. Pls.’ Opp’n to

Bouchers, ECF No. 163. The Bouchers replied. Bouchers’ Reply to Pls.’ Opp’n to Bouchers

(“Bouchers’ Reply”), ECF No. 177.

On December 16, 2022, M&K ES Main moved for leave to correct their responses to

plaintiffs’ fourth set of requests for admissions. Defs.’ Mot. for Leave. M&K ES Main alleges that

it mistakenly admitted a fact and is entitled to amend or correct it. Id. at 4. Trustees opposed. Pls.’

Opp’n to Defs.’ Mot. for Leave (“Pls.’ Opp’n for Leave”), ECF No. 181. M&K ES replied. Defs.’

Reply to Pls.’ Opp’n for Leave (“Defs.’ Reply for Leave”), ECF No. 183.

On January 3, 2023, M&K ES moved this Court to clarify or reconsider its February 28,

2022 opinion, IAM II, which denied the defendants’ earlier motion for partial summary judgment.

Defs.’ Mot. to Clarify or Reconsider (“Defs.’ Mot. to Clarify”), ECF No. 182. Trustees opposed.

Pls.’ Opp’n to Defs.’ Mot. to Clarify (“Pls.’ Opp’n to Clarify”), ECF No. 184. Defendants replied.

Defs.’ Reply to Pls.’ Opp’n to Clarify (“Defs.’ Reply to Clarify”), ECF No. 185.

These motions are ripe for review. There are no genuine issues of material fact.

II. LEGAL STANDARDS

A. Amending or Withdrawing Admissions Under Rule 36

Rule 36 of the Federal Rules of Civil Procedure governs requests for admissions as well as

their amendment and withdrawal. “A matter admitted under this rule is conclusively established

unless the court, on motion, permits the admission to be withdrawn or amended.” Fed. R. Civ.

P. 36(b). A “court may permit withdrawal or amendment if it would promote the presentation of

the merits of the action and if the court is not persuaded that it would prejudice the requesting party

in maintaining or defending the action on the merits.” Id. Rule 36(b) sets forth a two-prong test for

permitting amendments: (1) whether amendment would promote the presentation of the merits of

29
the action; and (2) whether amendment would prejudice the party opposing the motion to amend.

Haynes v. Navy Federal Credit Union, 296 F.R.D. 9, 13 (D.D.C. 2013). “Put more directly,

withdrawal is permissible if a party demonstrates that withdrawal will serve the presentation of the

merits without prejudicing the party who requested the admissions.” Baker v. Potter,

212 F.R.D. 8, 12 (D.D.C. 2002).

B. Motion to Clarify or Reconsider

“[T]here is no Federal Rule of Civil Procedure specifically governing ‘motions for

clarification.’” United States v. Philip Morris U.S. Inc., 793 F. Supp. 2d 164, 168 (D.D.C. 2011).

“The general purpose of a motion for clarification is to explain or clarify something ambiguous or

vague, not to alter or amend.” Id. (quoting Resolution Trust Corp. v. KPMG Peat Marwick,

No. 92-cv-1373, 1993 WL 211555, at *2 (E.D. Pa. June 8, 1993)). Parties are encouraged to

request clarification when they are uncertain about the scope of a ruling or its application “in a

concrete context or particular factual situation.” United States v. Philip Morris U.S. Inc.,

No. 99-cv-2496 (PLF), 2023 WL 4057501, at *4 (D.D.C. June 19, 2023) (quoting Philip Morris,

793 F. Supp. 2d at 168–69). However, a motion for clarification, like a motion for reconsideration,

is “not simply an opportunity to reargue facts and theories upon which a court has already ruled.”

United States v. Hassanshahi, 145 F. Supp. 3d 75, 81 (D.D.C. 2015) (quoting New York v. United

States, 880 F. Supp. 37, 38 (D.D.C. 1995)).

A motion to reconsider a denial of summary judgment is evaluated under Rule 54(b). Singh

v. Am. Ass’n of Retired Persons, Inc., No. 1:18-cv-1247 (RCL), 2020 WL 4039118, at *1

(D.D.C. July 17, 2020). Rule 54(b) provides that “any order or other decision, however designated,

that adjudicates fewer than all the claims . . . may be revised at any time before the entry of a

judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P.

30
54(b). The judicial interest in finality disfavors reconsideration, but a Court may do so “as justice

requires.” Wannall v. Honeywell Int’l, Inc., 292 F.R.D. 26, 30 (D.D.C. 2013); Cobell v. Norton,

224 F.R.D. 266, 272 (D.D.C. 2004). Although this standard is flexible and allows a district court

to exercise broad discretion, there must be good reason to reconsider an issue already litigated by

the parties and decided by the court, such as new evidence, a patent misunderstanding by the Court,

clear error, or intervening changes in controlling law. See Doe I v. Exxon Mobil Corp.,

No. 01-cv-1357 (RCL), 2019 WL 2348100, at *3 (D.D.C. June 3, 2019); Isse v. Am. Univ.,

544 F. Supp. 2d 25, 29 (D.D.C. 2008); Cobell v. Norton, 355 F. Supp. 2d 531, 540 (D.D.C. 2005);

All. of Artists & Recording Cos. v. Gen. Motors Co., 306 F. Supp. 3d 413, 415–16 (D.D.C. 2016).

C. Summary Judgment

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A fact is material when it “might affect the outcome of the suit” under the governing

substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And an issue is

genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Id. At the outset, the movant bears the burden of “identifying those portions of the record

it believes ‘demonstrate the absence of a genuine issue of material fact.’” White v. Wash. Nursing

Facility, 206 F. Supp. 3d 137, 143 (D.D.C. 2016) (quoting Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986)). Once the movant has made an “adequate showing that a fact cannot be

disputed, the burden shifts to the party opposing summary judgment to ‘set forth specific facts

showing that there is a genuine issue for trial.’” Id. (quoting Anderson, 477 U.S. at 250). Summary

judgment is also proper if the non-movant “fails to make a showing sufficient to establish the

31
existence of an element essential to that party’s case, and on which that party will bear the burden

of proof at trial.” Id. (quoting Celotex Corp., 477 U.S. at 322).

A party asserting that a fact cannot be genuinely disputed, or that a fact is genuinely

disputed, must support that assertion by either (a) “citing to particular parts of materials in the

record,” or (b) “showing that the materials cited do not establish the absence or presence of a

genuine dispute or that an adverse party cannot produce admissible evidence to support the fact.”

Fed. R. Civ. P. 56(c)(1)(A)–(B). When considering a motion for summary judgment, the Court

must view the evidence in the light most favorable to the non-movant and draw all reasonable

inferences in favor of the non-movant. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006).

The party opposing summary judgment, however, “may not rest upon the mere allegations or

denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue

for trial.” Anderson, 477 U.S. at 248. Finally, at the summary-judgment posture, the Court may

not make credibility determinations or weigh the evidence. Id. at 255.

III. DISCUSSION

Pending before the Court are five motions: (1) M&K ES Main’s motion for leave to correct

their responses to the Trustees’ fourth set of requests for admissions; (2) M&K ES’s motion to

clarify or reconsider this Court’s February 28, 2022 opinion, IAM II, which denied the defendants’

earlier motion for partial summary judgment; (3) Trustees’ motion for summary judgment; (4)

M&K ES’s cross-motion for summary judgment; and (5) the Bouchers’ cross-motion for summary

judgment. For the reasons that follow, the Court will GRANT M&K ES Main’s motion for leave;

DENY M&K ES’s motion to clarify or reconsider; GRANT the Trustees’ motion for summary

judgment; and DENY M&K ES’s and the Bouchers’ motions for summary judgment.

32
A. Motion to Correct Responses to Plaintiff’s Requests for Admissions

Defendant M&K ES seeks leave to amend a response to a request for admission that it

alleges was mistaken, inaccurate, and inconsistent with evidence in the record.

The Trustees served their Fourth Set of Requests for Admissions on M&K ES on April 15,

2022. Defs.’ Mot. for Leave at 4. Defendant M&K ES served its responses on May 16, 2022. Id.

M&K ES responded to Request for Admission No. 16 (“RFA No. 16”) as follows:

16. In January 2019, Chad and Jodi Boucher transferred the
Benjamin Avenue Property to M&K Employees.
ANSWER: [M&K ES] admits Request No. 16.

Id. at 5. M&K ES realized two days later, on May 18, 2022, that this response was incorrect and

that the Benjamin Avenue property was actually transferred on December 28, 2018. Id. On May

19, 2022, M&K ES notified Trustees’ counsel via email that the original answer was incorrect. Id.

M&K ES also served the following amended response:

16. In January 2019, Chad and Jodi Boucher transferred the
Benjamin Avenue Property to M&K Employees.
ANSWER: [M&K ES] denies Request No. 16. Answering further,
on December 28, 2018, Chad and Jodi Boucher transferred the
Benjamin Avenue Property to M&K [ES]. On January 24, 2019, that
transaction was recorded.

Id. at 6.

Counsel for Trustees responded to M&K ES by noting that “an admission may only be

withdrawn or amended upon order of the [C]ourt” under Federal Rule of Civil Procedure 36(b).

Email Thread, Ex. 4.to Defs.’ Mot. for Leave, ECF No. 176-5 at 2. Counsel for M&K ES then

stated, “[i]f this fact becomes an issue, we will seek leave to amend.” Id. Five days later, counsel

for Trustees deposed Jodi Boucher and asked her a question regarding a quitclaim deed for the

Benjamin Avenue property. Defs.’ Mot. for Leave at 6–7. Counsel for Trustees expressly

33
incorporated into his question the date appearing on the quitclaim deed—December 28, 2018. Id.

at 7.

The Trustees claim in their opposition to the Bouchers’ motion for summary judgment that

M&K ES’s original response establishes that the Benjamin Avenue property was transferred in

2019. Pls.’ Opp’n to Bouchers at 18. Because this fact is now “at issue,” defendants seek leave to

amend their response to RFA No. 16. Defs.’ Mot. for Leave at 7. Plaintiffs oppose granting leave.

Pls.’ Opp’n to Bouchers. A court may grant leave where (1) amendment would promote the

presentation of the merits of the action, and (2) amendment would not prejudice the party opposing

the motion to amend. Haynes, 296 F.R.D. at 13. For the following reasons, the Court will grant

M&K ES’s motion for leave to amend.

First, granting leave would promote presentation of the merits. Although, as the Court

explains below, the precise transfer date is not material to the ultimate issue, accurate background

information is necessary if the Court is to fully understand all materially relevant events. See

Hollingsworth v. LM Ins. Corp., No. 17-cv-494 (TES), 2019 WL 1103414, at *1 n.2

(M.D. Ga. Mar. 8, 2019). The available documentary evidence indicates that the Benjamin Avenue

property was in fact transferred on December 28, 2018 under a quitclaim deed. Quitclaim Deed,

Ex. 2.to Defs.’ Mot. for Leave, ECF No. 176-3 at 2–3. The Court cannot accurately reconstruct

the relevant sequence of events pertaining to the Bouchers’ and Trustees’ claims unless it

references the correct date. Moreover, the Court is not comfortable presenting as true factual

contentions—even admissions—that lack independent support and are plainly contradicted by the

available documentary evidence. See Scott v. Harris, 550 U.S. 372, 380 (2007).

Second, the Trustees will not suffer prejudice because they learned that M&K ES’s

admission was mistaken a mere two days after it was served, a month before the close of fact

34
discovery, and several months before the deadline for summary judgment motions. See Kang Kyu

Seo v. Moon Suk Oh, No. 18-cv-785 (RDM), 2019 WL 4711404, at *4–5 (D.D.C. Sept. 26, 2019).

The defendants’ corrected response accords with record evidence that was in the Trustees’

possession during the deposition of Jodi Boucher. Defs.’ Mot. for Leave at 5–7; Quitclaim Deed

at 2–3. And even if M&K ES had earlier moved for leave to amend, the Court still would have

denied the parties’ July 8, 2022 joint request to extend the discovery deadline. Contra Pls.’ Opp’n

to Bouchers at 3–4; see also ECF No. 153.

For these reasons, the Court will grant M&K ES leave to amend their response to RFA

No. 16. M&K ES’s response to RFA No. 16 is deemed amended and the answer served on the

Trustees on May 19, 2022 is substituted for their original response. See Defs.’ Mot. for Leave at 6.

The Court will rely on the amended response in deciding the parties’ remaining motions.

B. Motion to Clarify or Reconsider Memorandum Opinion

Defendants ask the Court to clarify or reconsider its February 28, 2022 opinion, IAM II,

which denied the defendants’ earlier motion for partial summary judgment. Only one portion of

that opinion is at issue:

But the evidence on the record and the Trust Agreement indicate
that defendants were in default and the Trustees properly
accelerated the withdrawal liability payments. Defendants may
present this argument in arbitration, but it does not entitle them to
summary judgment.

IAM II, 2022 WL 594539, at *9 (emphasis added) (internal citations omitted). Defendants ask the

Court to “clarify” that the Court did not rule on the propriety of accelerated withdrawal liability,

or in the alternative, reconsider its opinion. Defs.’ Mot. to Clarify at 5–6.

There is nothing for the Court to clarify. The language of the Court’s opinion is neither

vague nor ambiguous. It makes plain that this Court considered the evidence and conclusively

35
determined that “defendants were in default and the Trustees properly accelerated the withdrawal

liability payments.” IAM II, 2022 WL 594539, at *9. This is evident from this Court’s analysis:

The Trust Agreement section regarding insecurity default states:

The Trustees or their designee may also declare an Employer
in default in any circumstances indicating a substantial
likelihood that an Employer will be unable to pay its
withdrawal liability such as if the Employer files a petition
under the Bankruptcy Code of any similar proceeding under
state law, or [the employer] enters into a compromise with
creditors, or undergoes a bulk sale, insolvency, or
dissolution of a partnership or corporation.

Defendants argue that they did not default under the specific events
listed [under the terms of the Trust Agreement]. But their selective
quotations ignore that the list is inclusive. And, as defendants
concede, [M&K ES Alsip] informed the Trustees that it was
“financially unable to make any payment to the Trustees.” The
Court finds that is at least arguably a “circumstance indicating a
substantial likelihood that [defendants] will be unable to pay [their]
withdrawal liability.” A reasonable jury could find the default
determination proper.

Id. at 10 (emphasis added) (internal citations omitted). In other words, the Court reviewed the

evidence and applicable law and concluded that the accelerated withdrawal liability was proper.

Of course, the Court expressly acknowledged that the defendants could present their arguments to

the arbitrator. Id. at 9. But that does not change the import of the Court’s analysis and conclusion—

that “defendants were in default and the Trustees properly accelerated the withdrawal liability

payments.” Id.

The Court sees no reason to reconsider its ruling. Defendants have not shown that the Court

patently misunderstood the parties, failed to consider controlling decisions or data, or made a

decision beyond the adversarial issues presented. See Isse, 544 F. Supp. 2d at 29. Nor have

defendants alleged a change in controlling law or new evidence. See Exxon Mobil,

2019 WL 2348100, at *3. Defendants argue that the Court rendered its decision before “a complete

36
evidentiary record had . . . been presented.” Defs.’ Mot. to Clarify at 7. But defendants point to no

new evidence that could alter the Court’s analysis. See id.; Defs.’ Reply to Clarify. The reason for

this is simple—the Court’s analysis in IAM II is complete. As the Court noted, the Trust Agreement

provided a non-exhaustive, inclusive list of bases for declaring default. IAM II, 2022 WL 594539,

at *10. “Any circumstance[] indicating a substantial likelihood” of inability to pay is sufficient to

declare default. Id. Defendants conceded and the Court found that M&K ES Alsip had informed

the Trustees that it was financially unable to make any payments. Id. Consequently, the Court

concluded that the Trustees properly declared the defendants in default. Id.

Defendants present no new evidence. Instead, they claim that it is disputed whether Vogel’s

statement that M&K was unable to pay was “on behalf of the control group M&K Employee

Entities or just M&K Employee Solutions, LLC.” Defs.’ Reply to Clarify at 6. Again, defendants

previously conceded that “[i]n response to a demand from Fund counsel to pay the amount

provided in the first Preliminary Injunction Order [ECF 22], M&K Alsip said it was ‘financially

unable to make any payment to the Trustees’ and offered to provide information to verify the

Company’s financial condition.” ECF No. 102 at 16 n.7 (emphasis added). So, there is no question

that Vogel’s statement was not made solely on behalf of M&K ES Main. Context is also important.

At the time that counsel for defendants sent the letter indicating their inability to pay, the Court

had already ordered M&K ES Alsip and its control group members, including M&K ES Joliet,

M&K ES Summit, and M&K ES Northern Illinois, to pay the withdrawal liability pending

arbitration. ECF No. 22; see also ECF No. 102 at 16 n.7. When the Trustees demanded payment

pursuant to the Court’s order, counsel for all the defendants named in the preliminary injunction

stated that “M&K is financially unable to make any payment to the Trustees.” M&K Unable to

Pay Letter at 2. Counsel’s meaning was obvious—the M&K entities that had been ordered to pay

37
by the Court were unable to pay. See M&K Unable to Pay Letter at 2; see also IAM II,

2022 WL 594539, at *9–10. Again, under these circumstances a “reasonable jury could find the

default determination proper.” IAM II, 2022 WL 594539, at *10. Defendants have produced no

new evidence that warrants the Court revisiting this issue. 21

Defendants are displacing their dissatisfaction with the arbitrator’s ruling onto the Court.

The Court’s opinion made clear that defendants were free to raise their arguments concerning

accelerated withdrawal liability in arbitration. Id. at *9. That is precisely what defendants did. But

perhaps contrary to their expectations, the arbitrator heard their arguments, read this Court’s

opinion, and reached the same conclusion. See Arbitrator’s Opinion, Ex. A to Defs.’ Mot. to

Clarify, ECF No. 182-2 at 9. The arbitrator correctly reasoned that this Court had “ruled on the

issue” and that M&K was “seeking another bite at the apple in an alternative forum.” Id. at 7, 9.

The arbitrator saw no need to give defendants another chance to litigate the issue once it had been

subjected to the Court’s scrutinizing review. The Court declines to give them yet another chance. 22

C. Motions for Summary Judgment

Trustees seek summary judgment in their favor as to Counts I, II, III, IV, VI, VII, VIII, and

X. M&K ES seeks summary judgment as to Counts I, II, and III, and the Bouchers seek summary

judgment as to Count X. For the reasons that follow, the Court finds that the Trustees are entitled

to summary judgment on each count.

21
Defendants pin their hopes on the Court forgetting their previous concession and accepting their new interpretation
of the M&K Unable to Pay Letter, not on any new evidence. To be clear, even if the Court had not already definitively
ruled on this issue and were considering it for the first time, the Court would reach the same result: the accelerated
withdrawal liability was proper.
22
Defendants argue that the procedural posture associated with IAM II matters. There, defendants moved for partial
summary judgment and the Court ruled against them, finding, based on the defendants’ evidence, that accelerated
withdrawal liability was proper. Plaintiffs had not yet moved for summary judgment, so the Court did not grant them
summary judgment. This posture does not therefore mean that the Court’s ruling is not the law of the case. See Singh
v. George Washington Univ., 383 F. Supp. 2d 99, 101-02 (D.D.C. 2005).

38
1. Count I: M&K ES Alsip and the Remaining M&K ES Entities are Liable for
Unpaid Withdrawal Liability, Interest, and Liquidated Damages

Trustees claim that M&K ES Alsip and the remaining M&K ES entities are liable for

unpaid withdrawal liability, interest, and liquidated damages under the MPPAA’s “pay now,

dispute later” rule. Pls.’ MSJ at 30–31. Trustees ask the Court to grant them summary judgment

and: (1) award unpaid withdrawal liability, accrued interest, and liquidated damages; (2) rule that

payments previously remitted by defendants apply to accrued interest, not unpaid withdrawal

liability; and (3) rule that accrued interest is calculated using the 1.5% rate contained in the Second

Amendment to the Withdrawal Liability Policy. Id. at 30–33.

M&K ES opposes summary judgment for the Trustees on the ground that the parties are

still in arbitration and it would be premature to award withdrawal liability, interest, and liquidated

damages before arbitration is concluded. M&K ES’s Opp’n at 8–10. M&K ES also argues that the

Trustees improperly accelerated the withdrawal liability. Id. at 10–11. M&K ES asks the Court to

grant them summary judgment and: (1) rule that payments previously remitted by M&K ES apply

to withdrawal liability principal, not accrued interest; and (2) rule that interest is calculated using

the IRS Default Rate. M&K ES’s MSJ at 26–32.

(i) Withdrawal Liability, Interest, and Liquidated Damages

The Court finds that the Trustees are entitled to withdrawal liability, interest, and liquidated

damages, despite arbitration still being ongoing.

The MPPAA protects multiemployer pension plans from collapse by requiring employers

who withdraw from a plan to pay withdrawal liability. IAM I, 2021 WL 1546947, at *8. Congress

determined that when an employer disputes the amount of withdrawal liability assessed by a plan,

including through arbitration, it must continue paying withdrawal liability pending resolution of

that dispute. 29 U.S.C. § 1399(c)(2); see also IAM I, 2021 WL 1546947, at *8. This “pay now,

39
dispute later” regime mitigates the risk that a multiemployer pension plan will collapse when an

employer withdraws and contests the amount of withdrawal liability assessed. IAM I,

2021 WL 1546947, at *8.

If an employer ignores the “pay now, dispute later” rule and refuses to follow the statutory

procedure, its failure to pay is treated as a delinquent contribution and it must pay liquidated

damages, interest, costs, and attorneys’ fees. 29 U.S.C. §§ 1451(a)–(b), 1145, 1132(g)(2); see also

IAM II, 2022 WL 594539, at *8. Interest and liquidated damages are mandatory once the Court

enters judgment in favor of a benefit plan on the issue of withdrawal liability. See 29 U.S.C.

§ 1132(g); see also Combs v. Leishman, 691 F. Supp. 424, 426 (D.D.C. 1988); Cent. States, Se. &

Sw. Areas Pension Fund v. Gerber Truck., 870 F.2d 1148, 1156 (7th Cir. 1988); Anker Energy

Corp. v. Consolidation Coal Co., 177 F.3d 161, 179 n.9 (3d Cir. 1999).

The record is clear that defendants were assessed withdrawal liability and failed to make

payments within the time prescribed by statute. PSUMF ¶¶ 151–53; DPSUMF ¶¶ 151–53; see also

IAM II, 2022 WL 594539, at *4. Defendants do not meaningfully contest this. Instead, they contend

that judgment is premature because they challenged the withdrawal liability assessment in

arbitration and the arbitrator may ultimately rule in their favor. But defendants’ position is

irreconcilable with the statutory scheme enacted by Congress. By not paying during the pendency

of arbitration, defendants violated the “pay now, dispute later” rule. Id. at 9. Defendants’ willful

violation of this rule did not obviate the statutory requirement that they pay now. For this simple

reason, the Court finds that defendants are liable for unpaid withdrawal liability and must pay any

outstanding withdrawal liability immediately.

If defendants ultimately prevail in arbitration, they will be statutorily entitled to recover

any amounts paid in excess of the final withdrawal liability amount. See 29 U.S.C. § 1401(d). The

40
statutory provisions governing overpayment are sufficient to protect defendants should they

succeed before the arbitrator. See IAM I, 2021 WL 1546947, at *19 (citing IAM Nat’l Pension

Fund Benefit Plan A v. Cooper Industries, 789 F.2d 21, 25 (D.C. Cir. 1986)).

Because the Court has found in favor of Trustees, it must also order defendants to pay

interest and liquidated damages. See 29 U.S.C. § 1132(g). A potential victory in arbitration cannot

excuse defendants from paying these penalties because their purpose is to penalize defendants for

failing to comply with the “pay now, dispute later” rule and imperiling the viability of

multiemployer pension funds like the Fund. See IAM II, 2022 WL 594539, at *8. As the Court

previously explained, “even if [M&K ES] is ultimately determined not to owe any withdrawal

liability at all,” they will still owe interest and liquidated damages. Id. at *9 (quoting Bridge v.

Transpersonnel, Inc., No. 03-cv-2437 (RRP), 2004 WL 2034075, at *4–6

(N.D. Ill. Sept. 10, 2004)). The Court sees no reason to calculate interest and liquidated damages

differently merely because there is a possibility the defendants will prevail in arbitration.

Defendants’ last-ditch argument is that the Trustees improperly accelerated withdrawal

liability. But as discussed supra at III.B, the Court already resolved this issue in IAM II in favor of

the Trustees. The Court will not reconsider its earlier ruling.

Additionally, the Court has already indicated, and the defendants do not dispute, that M&K

ES Main, M&K Illinois Leasing, M&K ES Joliet, M&K ES Summit, and M&K ES Northern

Illinois are trades or businesses under common control with M&K ES Alsip. See IAM I,

2021 WL 1546947, at *6; M&K Sales’s Opp’n at 9–21. Each entity was owned entirely by the

Bouchers as of December 31, 2018. Id.; see also PSUMF ¶ 82; DPSUMF ¶ 82. As a result, each

entity is jointly and severally liable with M&K ES Alsip and the Trustees are entitled to summary

41
judgment on Count II. 29 U.S.C. § 1301(b)(1); 26 C.F.R. § 1.414(c)-2(c); accord Connors v.

Incoal, Inc., 995 F.2d 245, 249 (D.C. Cir. 1993).

All that remains for the Court to decide is whether payments previously remitted by

defendants apply to accrued interest or the principal withdrawal liability amount, and whether

accrued interest is calculated using the 1.5% rate contained in the Second Amendment to the

Withdrawal Liability Policy or the IRS Default Rate.

(ii) Effect of Prior Payments on Principal Withdrawal Liability Amount

Trustees argue that M&K ES’s payments totaling $1,797,781 should be credited first

toward accrued interest, and then the principal amount of unpaid withdrawal liability. Pls.’ MSJ at

31–32. If the Trustees are correct, then because the amount of accrued interest exceeds the total

payments already remitted by the fund, M&K ES still owes the full amount of withdrawal

liability—$6,078,739. Id. at 32; Pls.’ Reply at 9–10. M&K ES disagrees. M&K Sales’s Opp’n

at 13–16; M&K ES’s MSJ at 26–28.

Both parties acknowledge that the issue turns on whether the Court should apply the

“United States Rule” as defined in Chi. Truck Drivers, Helpers and Warehouse Workers Union

(Independent) Pension Fund v. El Paso CGO Co., 525 F.3d 591, 604–05 (7th Cir. 2008). Pls.’ MSJ

at 31–32; M&K ES’s MSJ at 26–28. Under the federal common-law “United States Rule,”

payments are first applied to accrued interest and then to principal. Chi. Truck Drivers, 525 F.3d

at 604. The United States Rule “applies in the absence of ‘a clearly expressed intention’ by the

parties to allocate payments in some other way,” and it “does not permit [a] debtor unilaterally to

allocate payments to principal rather than interest.” Id. (quoting S. Natural Gas Co. v. Pursue

Energy, 781 F.2d 1079, 1088 n.11 (5th Cir. 1986)).

42
The question the Court must decide is whether there was a clearly expressed intention by

the parties to allocate M&K ES’s previous payments to principal instead of accrued interest. The

arbitrator took a first stab at deciding this question and ultimately sided with defendants based on

the cumulative weight of the evidence, although he conceded that some would “view [his]

conclusion as a ‘stretch.’” ECF No. 188-1 at 12–13.

The Court assumes without deciding that the arbitrator had jurisdiction to decide this

question. See ECF No. 189 at 2 (arguing that the arbitrator “never had jurisdiction to decide the

issue”). Instead, the Court will focus on whether the evidence in the record is legally sufficient to

establish a “clearly expressed intention” to overcome the United States Rule and allocate payments

to accrued interest. See IAM Nat’l Pension Fund Benefit Plan C v. Stockton TRI Indus.,

727 F.2d 1204, 1207 n.7 (D.C. Cir. 1984) (“Under MPPAA . . . the decisions of the arbitrator . . .

are fully reviewable to determine whether applicable statutory law has correctly been applied and

whether the findings comport with the evidence.”); see also United Mine Workers of Am. 1974

Pension Plan v. Energy West Mining Co., 39 F.4th 730, 737 (D.C. Cir. 2022). Absent legally

sufficient evidence to overcome default application of the United States Rule, the Trustees are

entitled to summary judgment that the United States Rule applies.

This is an issue of first impression in this Circuit. There is decidedly little case law applying

the United States Rule to withdrawal liability under ERISA, let alone explaining how to identify a

“clearly expressed intention” to apply payments contrary to the rule. Two factors appear to

determine the parties’ intentions most directly: (1) whether a court ordered that payments would

apply to principal; and (2) the existence of a contractual agreement between the parties. See Devex

Corp. v. General Motors Corp., 749 F.2d 1020, 1025 (3d Cir. 1984) (emphasizing the existence

43
of a court order); Nat G. Harrison Overseas Corp. v. Am. Barge Sun Coaster, 475 F.2d 504, 507

(5th Cir. 1973) (emphasizing contractual arrangements between the parties).

Also important is that the MPPAA “be broadly construed to effectuate its remedial

purposes, which are to protect plan participants and the solvency of pension funds.” Chi. Truck

Drivers, 525 F.3d at 605. The United States Rule “encourages employers to pay the [withdrawal

liability] balance in full” and “comports with the remedial goals of the statute.” Id. Because the

United States Rule comports with the goals of the MPPAA, it should not be lightly discarded. See

id. In the Court’s view, this sets a high legal bar before finding the rule obviated. Otherwise, the

requirement that there be a “clearly expressed intention” has no bite, and the United States Rule

will give way too easily in cases where applying the rule is the best means of serving Congress’s

goals. Cf. IAM II, 2022 WL 594539, at *8.

Thus, to establish a clearly expressed intention to allocate payments contrary to the United

States Rule, M&K ES must show either that the Court understood that payments would be applied

to principal, in which case the Court will hew to its earlier understanding, or that the parties entered

into a contractual (or substantially similar) agreement to apply payments to principal. This standard

reflects the Court’s duty to apply the United States Rule (and exceptions to it) in service of the

remedial goals of the MPPAA.

The Court now applies that test to the undisputed facts and finds that the record evidence

is legally insufficient to establish a clearly expressed intention to deviate from the United States

Rule. Because the evidence is legally insufficient to establish intent to deviate from the United

States Rule, the United States Rule applies, and the Trustees are entitled to summary judgment.

See Chi. Truck Drivers, 525 F.3d at 604. The arbitrator’s award cannot govern the Court’s

44
disposition of this issue because it is incorrect as a matter of law. See United Mine Workers, 39

F.4th at 737.

First, the Court did not understand that M&K ES’s payments were made toward the

principal amount owed. The Court in IAM II stated that “[w]hen combined with small payments

[M&K ES] had made in the past, this [most recent] payment meant the defendants had now paid

the amount of the recalculated principal withdrawal liability in full.” 2022 WL 594539, at *4

(emphasis added). The Court did not state that defendants had paid principal withdrawal liability

in full, only that defendants had paid an amount equivalent to the recalculated principal withdrawal

liability. Id. Had the Court taken M&K ES’s position, it would have done so expressly, and not in

a single sentence in the procedural history section of its opinion. The Court said what it said only

because it was a true description of the record; M&K ES had made total payments equaling the

dollar amount of the recalculated withdrawal liability. That does not mean the Court understood

that the parties had agreed to apply the amount paid to principal instead of accrued interest.

Devex Corp. is instructive. There, the parties agreed and the Court ordered that the

defendant’s first payment would apply to principal rather than interest. Devex Corp., 749 F.2d

at 1025. The Court agrees with the Third Circuit that a court order can establish a clearly expressed

intention to depart from the United States Rule. But see id. at 1027 (Gibbons, J., dissenting). But

a single carefully qualified sentence in the background section of an opinion that does not even

broach the question of how payments will be applied is patently insufficient. See IAM II,

2022 WL 594539, at *4, *7–9. Thus, to prevail, M&K ES must be able to point to a contractual

(or substantially similar) agreement between the parties to deviate from the rule.

Second, the parties did not reach a contractual (or substantially similar) agreement to

deviate from the United States Rule. M&K ES points to a letter in which the Trustees stated:

45
Petitioner’s recalculated withdrawal liability is $1,797,781, and as a
result of the Fund’s September 10, 2020 acceleration of the liability,
$1,786,294—the entire amount of the recalculated liability, less the
$11,487 in interim payments made to date—is due immediately.

DSUMF ¶ 88; PDSUMF ¶ 88. According to M&K ES, when the Trustees demanded immediate

payment of $1,786,294, they expressed their intention to apply that amount to principal, because

it reflected the difference between the total recalculated withdrawal liability and M&K ES’s earlier

$11,487 payment. M&K ES’s MSJ at 27. But that does not clearly evince intent by the Trustees to

apply the amount requested to principal instead of accrued interest that the Court had not yet

awarded. At most, it constituted an attempt to collect money from a party that until that point had

obstinately refused to make any substantial payments. Besides, the Trustees’ letter clearly does not

constitute a contract or anything even remotely similar. Cf. Nat G. Harrison Overseas, 475 F.2d

at 507. M&K ES owed unpaid withdrawal liability; that has been the Trustees’ position throughout

this litigation. The Trustees demanded payment from M&K ES in absolute terms. The Trustees

did not intimate a compromise, such as a proposal to apply payments to principal if M&K ES

agreed to pay promptly the sum demanded. If that was the parties’ intention, they should have

memorialized it in an agreement and presented that agreement to the Court.

If the Court were to deem the letter proffered by M&K ES legally sufficient to establish a

clearly expressed intention to deviate from the United States Rule, it would severely undermine

the effectiveness of the United States Rule in ensuring compliance with the “pay now, dispute

later” regime. See Chi. Truck Drivers, 525 F.3d at 605. These facts are far too bare to find a “clearly

expressed intention” in light of the broader context in which the Court must interpret and apply

the United States Rule. See id. Indeed, they are legally insufficient to establish the requisite intent.

46
The Court cannot countenance deviating from the United States Rule on such thin facts when doing

so would undermine the remedial regime the rule is supposed to serve. 23 See id.

Finally, M&K ES argues that Section 1451(b) of ERISA requires the Trustees to treat

calculations of liability for delinquent contributions and withdrawal liability the same. M&K

Sales’s Opp’n at 15–16. Under the Fund’s Contributions Policy, amounts paid for delinquent

contributions are credited toward principal first. Contributions Policy at 3. But that is not what

Section 1451(b) requires. Section 1451(b) effectively copies the enforcement mechanisms for

delinquent contributions and applies them to unpaid withdrawal liability. See Carpenters Pension

Tr. Fund v. Moxley, 734 F.3d 864, 879 (9th Cir. 2013). It does not require that delinquent

contributions and withdrawal liability be calculated the same way, because they are not “otherwise

similar obligations.” See id. M&K ES points to no authority supporting its position.

For these reasons, M&K ES Alsip and the other M&K ES entities owe the full amount of

unpaid principal withdrawal liability. That amount is $6,078,739—the amount assessed by

Trustees after the Court vacated the arbitrator’s award. PDSUMF ¶ 162.

(iii) Interest Rate

Trustees allege that M&K ES Alsip owes interest at the rate of 1.5% per month on

$6,158,482 in withdrawal liability from August 13, 2019 to July 13, 2021, $1,797,781 in

recalculated liability from July 14, 2021 to October 24, 2022, and $6,078,739 in recalculated

liability from October 25, 2022 to present. See Pls.’ Opp’n to M&K ES at 22; Pls.’ MSJ at 32.

M&K ES opposes on two grounds: (1) interest should be calculated based on the amount of

withdrawal liability ultimately determined in arbitration and not the amounts assessed by the

23
The arbitrator thought it significant that the Trustees’ First Amended Rule 26(A)(1) Initial Disclosures expressly
identified $1,786,294 as “Principal.” ECF No. 188-1 at 12. But as the Court has explained, merely labeling an amount
of money “principal” or “recalculated liability” does not constitute a “clearly expressed intention” to deviate from the
United States Rule. Absent a court order or contractual agreement to deviate, the United States Rule applies.

47
Trustees; and (2) the correct interest rate is the IRS Default Rate, not 1.5%. M&K Sales’s Opp’n

at 23, 31. The Court finds that accrued interest should be calculated using the amounts assessed by

the Trustees and applying the 1.5% rate contained in the Second Amendment to the Withdrawal

Liability Policy.

First, the law is clear that “a plan sponsor may require immediate payment of the

outstanding amount of an employer’s withdrawal liability, plus accrued interest on the total

outstanding liability from the due date of the first payment which was not timely made.” 29 U.S.C.

§ 1399(c)(5) (emphasis added); 29 C.F.R. § 4219.32(d)–(e). Defendants failed to make any

payments before August 13, 2019 (the date on which the first quarterly installment payment was

due), so that is the date interest started accruing. PSUMF ¶¶ 151–53; DPSUMF ¶¶ 151–53.

Additionally, interest is due “on the total outstanding liability.” 29 U.S.C. § 1399(c)(5). The Court

has already established that “total outstanding liability” corresponds to the amounts assessed by

the Trustees until those amounts are overturned. See IAM II, 2022 WL 594539, at *7–9. This is

true because otherwise the “pay now, dispute later” rule would lack bite, as employers could escape

penalty for violating “pay now, dispute later” by prevailing in arbitration. See id. at 8. Tying

interest and liquidated damages to the amounts assessed by the plan—until those amounts are

reduced or overturned—furthers Congress’s purpose in enacting the MPPAA by encouraging

compliance with the rule. See id.

M&K ES argues that the April 2021 Injunction established that the Trustees are not entitled

to interest and liquidated damages based on the Trustees’ assessments. M&K ES’s MSJ at 22–23.

But that is not what the April 2021 Injunction said. The April 2021 Injunction distinguished

withdrawal liability from interest and liquidated damages for the limited purpose of determining

whether the Trustees would suffer irreparable harm absent preliminary relief. IAM I,

48
2021 WL 1546947, at *10. The Court reasoned that they would not. Id. The Court’s discussion of

safeguards did not implicate the manner in which interest or liquidated damages are calculated. Id.

IAM II, in contrast, established that interest is due on amounts assessed by the Trustees until those

amounts are overturned. See 2022 WL 594539, at *7–9.

Second, the 1.5% interest rate is proper because M&K ES Alsip agreed to be bound by

retroactive amendments to the Trust Agreement including the Second Amendment to the

Withdrawal Liability Policy. M&K ES is correct that the Trust Agreement originally set the

interest rate equal to the IRS Default Rate. Trust Agreement at 27; Withdrawal Liability Policy

at 5. But M&K ES Alsip also agreed to be bound to the Trust Agreement “as currently in effect

and as the Trust Plan may be amended from time to time.” M&K ES Alsip CBA at 14. The Trust

Agreement expressly allows for retroactive amendment:

This Restated Trust Agreement may be amended in any respect from
time to time by the Trustees, provided that each amendment shall be
duly executed in writing by the Trustees. As to any amendment, the
Trustees in their discretion shall have full power to fix the effective
date thereof. Any amendment may have retroactive effect if it is so
determined by the Trustees.

Trust Agreement at 33 (emphasis added). On April 7, 2021, the Trustees amended the Trust

Agreement to retroactively apply a 1.5% interest rate. Withdrawal Liability Policy at 11. On its

face, M&K ES Alsip agreed to be bound by retroactive amendments to the Trust Agreement. Trust

Agreement at 33. There is no provision limiting the scope of such amendments or preventing the

Trustees from amending the interest rate applied to unpaid withdrawal liability. Id. So, M&K ES

Alsip is bound by the revised interest rate. See Serv. Emps. Int’l Union Nat’l Indus. Pension Fund

v. Hebrew Homes Health Network, Inc., No. 17-cv-1215 (TNM), 2019 WL 4346325, at *10 & n.7

(D.D.C. Sept. 12, 2019).

49
M&K ES argues that it is not bound by retroactive amendments to the Trust Agreement

because it terminated the CBA before the amendment was signed and entered. M&K ES’s MSJ

at 29–30. M&K ES relies on two decisions from outside this Circuit—Chi. Area Int’l Bhd. Of

Teamsters Health & Welfare Tr. Fund v. Thomas S. Zaccone Wholesale Produce, Inc.,

874 F. Supp. 188 (N.D. Ill. 1995), and 32BJ North Pension Fund v. Nutrition Mgmt. Servs. Co.,

935 F.3d 93 (2d Cir. 2019). These decisions are inapposite. In both cases the employers never

expressly agreed to be bound by a trust agreement containing a retroactive amendment clause, let

alone any trust agreement. Zaccone, 874 F. Supp. at 192; 32BJ North, 935 F.3d at 101–02. Here,

M&K ES Alsip expressly agreed to be bound by a trust agreement containing a provision allowing

for retroactive amendment. The Court finds the plain language of the Trust Agreement sufficient

to rule in the Trustees’ favor.

Additionally, although M&K ES Alsip’s obligation to contribute to the Fund under the

CBA terminated after December 31, 2018, M&K ES Alsip was still obligated to pay withdrawal

liability under the terms of the Trust Agreement. The Fund issued the unamended Withdrawal

Liability Policy before M&K ES Alsip terminated the CBA. See Withdrawal Liability Policy at 8

(showing the policy was signed December 5, 2018). M&K ES Alsip was bound by the unamended

policy and does not argue that its obligations under it ceased once it terminated the CBA. Indeed,

given the nature of withdrawal liability, the policy’s provisions only could have sprung into life

after M&K ES Alsip terminated its contribution obligations and completely withdrew from the

Fund. See id. at 2 (“Trustees . . . adopt[] the following policy . . . for assessing liability against an

employer that experiences a complete or partial withdrawal from the Fund.”) (emphasis added);

see also 29 U.S.C. § 1381. So, M&K ES Alsip retained at least some contractual obligations to the

Fund after December 31, 2018—i.e., to pay any withdrawal liability in conformity with the terms

50
of the Trust Agreement as embodied in the Withdrawal Liability Policy—and those obligations

sprang from the Trust Agreement.

To summarize, all of M&K ES Alsip’s legal obligations to the Fund via the Trust

Agreement did not cease merely because its duty to contribute under the CBA had ceased; M&K

ES Alsip retained obligations relating to withdrawal liability. The Trustees retroactively modified

those surviving obligations pursuant to the retroactive amendment clause in the Trust Agreement. 24

M&K ES Alsip failed to properly discharge those obligations because it brazenly disregarded the

“pay now, dispute later” scheme. The Court cannot emphasize enough that it is M&K ES’s own

unlawful actions that have prolonged its legal entanglement with the Fund. The Court is unwilling

to ignore the plain language of the Trust Agreement to rescue defendants. See M&K Sales’s Opp’n

at 20 (explaining that M&K ES Alsip relied upon the previous rate when deciding not to conform

with “pay now, dispute later”).

Moreover, 1.5% is fair and reasonable. See Trust Agreement at 22 (applying 1.5% interest

rate to delinquent contributions); see also ITPE Pension Fund v. Stronghold Sec., LLC,

23 F. Supp. 3d 1, 8 (D.D.C. 2014) (awarding 1.5% interest rate on delinquent contributions). And

allowing retroactive amendment under these circumstances is consistent with Congress’s intent to

utilize interest to penalize employers who violate “pay now, dispute later.” See IAM II,

2022 WL 594539, at *8. Under these circumstances, the Trustees’ retroactive interest rate

amendment was proper.

Finally, the Court finds no merit in M&K ES’s suggestion that the Pension Benefit

Guaranty Corporation (the “PBGC”) was required to approve the Trustees’ amendment under

24
Again, M&K ES Alsip agreed to be bound by the Trust Agreement. M&K ES Alsip CBA at 14. The Withdrawal
Liability Policy is a duly promulgated extension of the Trust Agreement. Trust Agreement at 18.

51
29 U.S.C. § 1400(a). Contra M&K ES’s MSJ at 30 n.7. This section does not apply to plans or

amendments authorized under 29 U.S.C. §§ 1381–1399. PBGC Notice, 48 Fed. Reg. 19807-01

(May 2, 1983), available at 1983 WL 123453. M&K ES understandably dropped this argument in

their reply. See M&K ES’s Reply. For the same reason, M&K ES is not entitled to reopen

discovery. 25

***

The Court finds that the Trustees are entitled to, and M&K ES Alsip and the remaining

M&K ES entities owe: (1) $6,078,739 in unpaid withdrawal liability; (2) interest calculated at the

rate of 1.5% per month on $6,158,482 in withdrawal liability from August 13, 2019 to

July 13, 2021, $1,797,781 in recalculated liability from July 14, 2021 to October 24, 2022, and

$6,078,739 in recalculated liability from October 25, 2022 to present, less any payments previously

remitted by M&K ES Alsip and the remaining M&K ES entities; and (3) liquidated damages at an

amount equal to the greater of (i) the amount of accrued interest or (ii) 20% of $6,078,739.

29 U.S.C. § 1132(g)(2).

2. Count III: M&K ES Summit and the Remaining M&K ES Entities are Liable for
Delinquent Contributions, Interest, and Liquidated Damages

Trustees claim that M&K ES Summit and the remaining M&K ES entities owe delinquent

contributions for work performed by M&K ES Northern Illinois employees at M&K Sales

Northern Illinois. Pls.’ MSJ at 38–41. The Trustees’ theory is that M&K ES Summit and M&K

ES Northern Illinois constituted a “single employer” and that therefore M&K ES Summit owes

contributions for M&K ES Northern Illinois employees under the M&K ES Summit CBA. Id.

25
The Trustees’ reasons for amending the interest rate are immaterial. Defendants offer no reason to think otherwise.

52
Trustees ask the Court to grant them summary judgment and award delinquent contributions,

interest, and liquidated damages. Id. at 41.

M&K ES opposes summary judgment for the Trustees on the ground that the Trustees

failed to properly plead the single employer theory prior to filing their motion for summary

judgment. M&K ES’s Opp’n at 21–23. M&K ES also contends that the record does not support a

finding of single employer status. Id. at 23—37. M&K ES asks the Court to grant them summary

judgment and find that the Trustees are not entitled to any outstanding contributions. M&K ES’s

MSJ at 32–41.

(i) Sufficiency of Pleading

M&K ES argues that the single employer theory asserted in the Trustees’ motion for

summary judgment is not asserted in the Trustees’ Fifth Amended Complaint and therefore is

waived. M&K ES’s Opp’n at 21–23.

M&K ES’s view is that the Trustees’ single employer theory constitutes a “fundamental

change” from the contractual theory of liability pleaded in their complaint. Id. at 21 (quoting

Teltschik v. Williams & Jensen, PLLC, 683 F. Supp. 2d 33, 41 (D.D.C. 2010)). However, the Court

finds that the complaint provided M&K ES with adequate notice that the Trustees were pursuing

delinquent contributions from M&K ES Summit on the theory that M&K ES Summit and M&K

ES Northern Illinois were a single employer. See Fifth Am. Compl. ¶¶ 62–67. For this reason,

M&K ES’s pleading argument fails.

Federal Rule of Civil Procedure 8 requires “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleadings must ‘give

the defendants fair notice of what the claim is and the grounds upon which it rests,’ but the Rule

‘does not require detailed factual allegations.’” Jones v. Kirchner, 835 F.3d 74, 79 (D.C. Cir. 2016)

53
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). A complaint “must be construed so as to do justice.” Fed. R. Civ.

P. 8(e).

M&K ES’s argument elides the fact that the Trustees’ single employer theory is part and

parcel of their contractual claim. The Trustees’ position is that M&K ES Summit is liable for

contributions for M&K ES Northern Illinois employees under the terms of the M&K ES Summit

CBA because both entities constituted a single employer. Pls.’ MSJ at 38. While the Trustees may

not have spelled out the facts underlying their single employer theory under Count III, the Trustees

did expressly allege elsewhere in the complaint that “M&K Employees and M&K Sales constituted

a functionally integrated enterprise” and “at all relevant times . . . shared common ownership,

facilities, equipment, personnel, management, customers, and centralized control over labor

relations.” Fifth Am. Compl. ¶ 67. These allegations (on which the Trustees now rely in their

motion for summary judgment) were sufficient to put M&K ES on notice that the Trustees were

pursuing a single employer theory as between M&K ES Summit and M&K ES Northern Illinois,

even though the complaint generally emphasized single employer status between M&K ES and

M&K Sales entities. See Brown v. District of Columbia, No. 14-cv-750 (RC), 2022 WL 103304,

at *11 (D.D.C. Jan. 11, 2022). In other words, the Trustees’ theory “is well within the contours of

the complaint.” Id.

M&K ES’s protestations regarding discovery are unavailing. The Trustees objected to one

of defendants’ requests for production by stating that this Court’s review was limited to “whether

M&K [ES Summit] is obligated to pay contributions for work performed at the M&K [ES]

Northern Illinois facility.” M&K ES’s Opp’n at 22. But again, that is precisely what the Trustees

ask the Court to determine in their motion for summary judgment. Pls.’ MSJ at 40–41. The

54
Trustees’ response did not disclaim a single employer explanation for why M&K ES Summit is

obligated under its CBA, M&K ES’s Opp’n at 22, and the Trustees’ current motion does not

constitute a fundamental shift from that response, see Brown, 2022 WL 103304, at *11.

M&K ES also points to the Trustees’ response to its request that the Trustees identify any

documents requiring M&K ES Summit to make contributions for employees working at M&K

Sales Northern Illinois. M&K ES’s Opp’n at 22. The Trustees responded by directing them to the

M&K ES Summit CBA. Id. M&K ES is unhappy that the Trustees did not direct them to other

documents they now cite in their motion for summary judgment, such as the ASAs. Id. at 23. But

these other documents were non-responsive to M&K ES’s request. Only the M&K ES Summit

CBA required M&K ES Summit to remit contributions; the other documents M&K ES references

(and that the Trustees cite) establish only that M&K ES Summit and M&K ES Northern Illinois

constitute a single employer. See Bd. of Trs., Sheet Metal Workers’ Loc. Union 102 Health Benefit

Fund v. Gibson Bros., No. 820329, 1982 WL 2079, at *3 (D.D.C. Oct. 27, 1982). The contribution

requirement itself stems from the CBA. And in any event, M&K ES was already in possession of

all the documents that the Trustees now cite.

The Trustees do “not seek to rely on wholly different arguments” than those in their

complaint and they have not sought to cure pleading defects via summary judgment briefing. See

Brown, 2022 WL 103304, at *11. For these reasons, the Court finds that the Trustees’ single

employer theory of liability is not waived. All that remains for the Court to decide is whether M&K

ES Summit and M&K ES Northern Illinois constituted a single employer.

(ii) Single Employer Status

“To determine whether two nominally separate business entities are a single employer, one

must examine four factors set out by the Supreme Court: (1) interrelation of operations, (2)

55
common management, (3) centralized control of labor relations, and (4) common ownership.”

Lippert Tile Co. v. Int’l Union of Bricklayers & Allied Craftsmen, Dist. Council of Wis. & Its Loc.

5, 724 F.3d 939, 946 (7th Cir. 2013) (quoting Trs. of Pension, Welfare, and Vacation Fringe

Benefit Funds of IBEW Local 701 v. Favia Elec. Co. Inc., 995 F.2d 785, 788 (7th Cir. 1993)). “No

one of these factors is conclusive; instead, the decisionmaker must weigh the totality of the

circumstances.” Id. at 946–47. “Ultimately, single employer status . . . is characterized by the

absence of an arm’s length relationship found among unintegrated companies.” Id. at 947 (quoting

Lihli Fashions Corp. v. NLRB, 80 F.3d 743, 747 (2d Cir. 1996)).

The Court concludes that M&K ES Summit and M&K ES Northern Illinois constituted a

single employer.

First, the operations of M&K ES Summit and M&K ES Northern Illinois were “extensively

interrelated.” Id. “When analyzing the interrelation of operations, it is the day-to-day operational

matters that are the most relevant.” Id. (internal quotation marks omitted). In Lippert Tile, the court

found it significant that the “same entity” maintained business records, processed payroll, handled

billing, and managed bank accounts, because these “daily operations are critical to the smooth

functioning of . . . both companies’ work.” Id. So too here. All M&K ES entity personnel records,

including records for M&K ES Northern Illinois and M&K ES Summit, were maintained at the

M&K Sales Summit dealership location. PSUMF ¶¶ 78, 112; DPSUMF ¶¶ 78, 112. Schneider and

Milarg, both of whom were M&K ES Summit employees, managed payroll, billing, and bank

accounts for both M&K ES Summit and M&K ES Northern Illinois. PSUMF ¶ 111; DPSUMF

¶ 111.

Additionally, both M&K ES Summit and M&K ES Northern Illinois were owned by the

same people, operated as part of the same organizational structure, and served the same clients in

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the same geographical area subject to identical ASAs. E.g., PSUMF ¶¶ 35, 38, 53–55, 81–82;

DPSUMF ¶¶ 35, 38, 53–55, 81–82. Both M&K ES Summit and M&K ES Northern Illinois were

overseen by the same Regional Vice President of Operations, Waters, who himself was an

employee of M&K ES Northern Illinois. PSUMF ¶ 108; DPSUMF ¶ 108. Both entities shared the

same head of human resources, LaJeunesse, who himself was an employee of M&K ES Summit.

PSUMF ¶ 110; DPSUMF ¶ 110. Both entities received legal and accounting services from Mika

Meyers and Crowe. PSUMF ¶¶ 94, 101; DPSUMF ¶¶ 94, 101. And the general managers of M&K

ES Summit and M&K ES Northern Illinois were both accountable to Pilecki. PSUMF ¶¶ 68, 83–

85; DPSUMF ¶¶ 68, 83–85. As in Lippert Title, these facts are sufficient to establish that the

operations of these entities were “extensively interrelated if not intertwined.” See 724 F.3d at 947.

Second, M&K ES Summit and M&K ES Northern Illinois shared common management.

Although both entities had separate general managers who were responsible for interviewing and

hiring subordinate employees, the general managers for both entities were approved and hired by

Pilecki. PSUMF ¶¶ 68, 83–84; DPSUMF ¶¶ 68, 83–84. Pilecki retained discretion to hire and fire

employees, and LaJeunesse kept Pilecki informed “of all hiring and firing decisions of M&K ES

employees, grievances, and workers’ compensation claims.” PSUMF ¶¶ 84, 87; DPSUMF ¶¶ 84,

87. Pilecki in turn conducted general managers’ performance reviews, set their compensation, and

determined when they could step away from work. PSUMF ¶ 85; DPSUMF ¶ 85. For several

months the M&K ES Summit and M&K ES Northern Illinois general managers were also both

overseen by Waters. PSUMF ¶ 108; DPSUMF ¶ 108. And Wilkey supervised two M&K ES

Summit employees while they worked out of the M&K ES Northern Illinois location. PSUMF

¶ 109; DPSUMF ¶ 109. Although as a general matter it appears that subordinate M&K ES

employee assignments and discipline were given by or issued by other M&K ES employees from

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the same location (i.e., their general managers), the other facts cited by the Court are sufficient to

establish common management. DSUMF ¶¶ 36–37; PDSUMF ¶¶ 36–37.

Third, M&K ES Summit’s owner, Jansma, exercised centralized control over labor

relations because she created a new entity, M&K ES Northern Illinois, which performed the exact

same work that was performed at M&K Sales Summit, except using non-union labor. PSUMF

¶ 105–06; DPSUMF ¶ 105–06. M&K ES argues that M&K ES Northern Illinois was formed to

hire employees from an existing non-union dealership and not to divert work from M&K ES

Summit. However, the decision to create

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9840517. Public record. Not legal advice.