Amicus Curiae Brief — Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal.

——

. Court, U.S.

i} eT E E we"

No. 96-370 OCT 15 1996

wv ic CLERK

In THE —

Supreme Court of the United States

OCTOBER TERM, 1996

BOARD OF TRUSTEES, BAY AREA LAUNDRY AND

Dry CLEANING PENSION TRUST FUND,

- Petitioner,

FERBAR CORPORATION OF CALIFORNIA, INC.;

STEPHEN BARNES,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF OF AMICUS CURIAE

CENTRAL STATES, SOUTHEAST AND

SOUTHWEST AREAS PENSION FUND

IN SUPPORT OF PETITIONER

THOMAS C. NYHAN *

General Counsel

TERENCE G. CRAIG

CENTRAL STATES, SOUTHEAST

AND SOUTHWEST AREAS

PENSION FUND

9377 West Higgins Road

Rosemont, Illinois 60018-4938

(847) 518-9800

Attorneys for Amicus Curiae

* Counsel of Record

WILSON - Eres Printinec Co., Inc. - 789-0096 - WasHINGTON, D.C. 20001

oe ~

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-370

BOARD OF TRUSTEES, BAY AREA LAUNDRY AND

Dry CLEANING PENSION TRUST FUND,

. Petitioner,

FERBAR CORPORATION OF CALIFORNIA, INC.;

STEPHEN BARNES,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals ©

for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

OF CENTRAL STATES, SOUTHEAST AND

SOUTHWEST AREAS PENSION FUND

IN SUPPORT OF PETITIONER

Central States, Southeast and Southwest Areas Pension

Fund moves the Court for leave to file the attached brief

as amicus curiae in support of the petition for a writ of

certiorari of petitioner Board of Trustees, Bay Area

Laundry and Dry Cleaning Pension Trust Fund. Central

States urges that the United States Court of Appeals for

the Ninth Circuit be reversed. The reasons for ths motion

are as follows:

1. Central States Pension Fund is the largest mul-

tiemployer defined benefit pension plan in the coun-

try. The Pension Fund covers approximately 400,000

active participants and retirees.

2. Central States is governed by the Employee Re-

tirement Income Security Act of 1974, as amended,

including its statute of limitations for collection of

withdrawal liability found at 29 U.S.C. § 1451(f).

3. The Central States is located within the juris-

diction of the Seventh Circuit, but does business in

and is subject to litigation in each of the numbered

federal judicial circuits.

4. The decision of the court below interprets the

limitations period of § 1451(f) in a manner in con-

flict with the interpretation of the Seventh Circuit

(and other circuits in which Central States does

business ).

5. The nationwide scope of Central States’ opera-

tions makes it uniquely suited to address the effect of

the conflict among the circuits on the operations of

multiemployer pension plans like Central States and

Petitioner.

6. Petitioner consents to the filing of this brief.

Respondents refuse to consent.

Respectfully submitted,

THOMAS C. NYHAN *

General Counsel

TERENCE G. CRAIG

CENTRAL STATES, SOUTHEAST

AND SOUTHWEST AREAS

PENSION FUND

9377 West Higgins Road

Rosemont, Illinois 60018-4938

(847) 518-9800

Attorneys for Amicus Curiae

* Counsel of Record

TABLE OF CONTENTS

TABLE OF AUTHORITIES .0..0..........cccccccccesecececerees

TI ahinseciiichoctistttinnennihlitneeriatiiitishasonttsiembecestianiings

I. THE STATUTE OF LIMITATIONS FOR

Il.

BRINGING AN ACTION TO COLLECT WITH-

DRAWAL LIABILITY HAS BEEN GIVEN

CONFLICTING INTERPRETATIONS BY THE

FIRST, THIRD, SEVENTH, AND DISTRICT

OF COLUMBIA CIRCUITS FROM THAT IN

ITD

THE CONFLICTING DECISIONS OF THE

COURTS OF.APPEALS PLACE AN UNAC-

CEPTABLE BURDEN ON PENSION PLANS,

CONTRIBUTING EMPLOYERS, AND THE

COURTS AND SUBVERT STATUTORY

RE a eo 7

EE Seccestmcsmtemetgnnenes

(i)

Page

ii

10

13

ii

TABLE OF AUTHORITIES

CASES Page

Bay Area Laundry & Dry Cleaning Pension Trust

Fund v. Ferbar Corporation, et al., 73 F.3d 971

(9th Cir. 1995), petition for cert. filed, 65

U.S.L.W. 3185 (U.S. Sept. 10, 1996) (No. 96-

eS SE i ae ee See 3,6

Board of Trustees of Constr. Laborers Pension

Trust v. Thibodo, 34 F.3d 914 (9th Cir. 1994). 7

Board of Trustees of Dist. 15 Machinists Pension

Fund v. Kahle Engineering Corp., 43 F.3d 852

Gs Ge HIE cisccacretecsecneenmntndiaieteniemmenseiesenes 3,8

Central States, Southeast and Southwest Areas

Pension Fund v. Naveo, 3 F.3d 167 (7th Cir.

ESE Sa Ee Ee rel ll 3,8

Giroux Bros. Transp. v. New England Teamsters

& Trucking Indus. Pension Fund, 73 F.3d 1 (ist

RR SE CE ee ee a 3,9

Joyce v. Clyde Sandoz Masonry, 871 F.2d 1119

9. ——- e S ee e 4,7,8

Schlitz v. Milwaukee Brewery Workers’ Pension

Plan, 3 F.3d 994 (7th Cir. 1998), petition for

cert. filed, 62 U.S.L.W. 3378 (U.S. Nov. 12,

FS RS 3

STATUTES

29 U.S.C. § 1881 (a) once eeeeeeeeeeeennnen ticeemcenit tal

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29 U.S.C. § 1891 nnn Gielen a tall

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29 U.S.C. § 1899(b) (1) ooccceeecsceccevsvvveoeeeeeeeveessvsuemeeeeen 6,

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In THE

Supreme Court of the United States

OcTOBER TERM, 1996

No. 96-370

BOARD OF TRUSTEES, BAY AREA LAUNDRY AND

Dry CLEANING PENSION TRUST FUND,

~. Petitioner,

FERBAR CORPORATION OF CALIFORNIA, INC.;

STEPHEN BARNES,

Respondents.

Un Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE

CENTRAL STATES, SOUTHEAST AND

SOUTHWEST AREAS PENSION FUND

IN SUPPORT OF PETITIONER

INTRODUCTION

Central States, Southeast and Southwest Areas Pension

Fund (“Central States”) is a multiemployer defined bene-

fit pension trust fund established in 1955 by affiliates of

the International Brotherhood of Teamsters and various

employer associations pursuant to section 302(c)(5) of

the Labor Management Relations Act of 1947. Central

States is governed by a board of trustees consisting of an

equal number of union and management appointees (four

of each). Central States is administered for the exclusive

benefit of the participants to whom the trustees owe an

2

undivided duty of loyalty. The purpose of the Central

States pension plan is to pay retirement and certain other

benefits to participants and their beneficiaries who become

eligible under the terms of the plan.

Under the plan participating employers contribute to

Central States pursuant to their collective bargaining

agreements for work performed by their covered (bargain-

ing unit) employees. Employees earn credit (accrued

benefits) for covered work periods and after earning 10

years of credit, become vested in the benefits. The plan

covers 178,000 retirees currently drawing benefits, 217,000

active participants and 69,000 vested inactive participants.

Central States is the largest multiemployer pension plan

in the United States with assets of $14.473 billion and

vested benefit liabiliies of $16.524 billion. Central States’

unfunded vested benefits (“UVB”) are thus $2.051 bil-

lion. The UVB is not immediately due because the lia-

bilities represent the present value of benefits payable over

decades into the future. The expected time to amertize

the UVB at current funding rates is about 29 years. The

principal means for funding the UVB, as well as for fund-

ing current benefit accruals, is the contributions of em-

ployers made pursuant to their collective bargaining agree-

ments. Central States presently receives contributions

from over 5,000 employers through over 9,000 billing

accounts from 42 states and Canada.’

Additional funding is required by statute when an em-

ployer withdraws (ceases to have an obligation to con-

tribute) from Central States. 29 U.S.C. § 1381(a). This

withdrawal liability is an employer’s pro-rata share of the

UVB. 29 U.S.C. § 1391. Withdrawal liability is payable

in installments with interest. 29 U.S.C. § 1399(c)(1).

See generally Subtitle E of Title [TV of the Employee Re-

tirement Income Security Act of 1974 (“ERISA”), 29

1A billing account is generally assigned to each collective bar-

gaining agreement. Some employers are subject to more than one

agreement.

3

U.S.C. § 1381, et seq; Milwaukee Brewery Workers v.

Jos. Schlitz Brewing Co., —— US. ——, 115 S.Ct.

994 (1995). As of September 30, 1996, Central States

had 305 outstanding assessments of withdrawal liability

totalling approximately $267 million. Of these 80 oc-

curred in 1996 in the total amount of $35 million. Since

September 26, 1980,° Central States has collected about

$440 million in withdrawal liability.

Central States’ withdrawal liability program, other than

its size, is similar to Petitioner's Bay Area Laundry and

Dry Cleaning Pension Trust Fund. Due to its size, how-

ever, Central States brings a somewhat broader perspec-

tive to consideration of certain issues such as that pre-

sented in the Petition. Central States files this vrief amicus

curiae in support of Petitioner.

INTERESTS OF CENTRAL STATES

In the decision below the United States Court of Ap-

peals for the Ninth Circuit ruled that the six-year statute

of limitations for bringing an action to collect withdrawal

liability begins to run on the date that an employer with-

draws from a multiemployer pension plan. Bay Area

Laundry & Dry Cleaning Pension Trust Fund v. Ferbar

Corporation, et al., 73 F.3d 971 (9th Cir. 1995), peti-

tion for cert. filed, 65 U.S.L.W. 3185 (U.S. Sept 10,

1996) (No. 96-370). This decision is directly in conflict

with four earlier decisions of the United States Courts of

Appeals for the First, Third, Seventh, and District of

Columbia Circuits in Giroux Bros. Transp. v. New

England Teamsters & Trucking Indus. Pension Fund, 73

F.3d 1 (1st Cir. 1996); Board of Trustees of Dist. 15

Machinists Pension Fund v. Kahle Engineering Corp., 43

F.3d 852 (3d Cir. 1994); Central States, Southeast and

Southwest Areas Pension Fund v. Navco, 3 F.3d 167

2 This is the effective date of the Multiemployer Pension Plan

Amendments Act of 1980 (“MPPAA”), which added the withdrawal

liability provisions of ERISA.

4

(7th Cir. 1993); Joyce v. Clyde Sandoz Masonry, 871

F.2d 1119 (D.C. Cir. 1989). These other circuits have

each ruled that the statute of limitations does not com-

mence running until the latest date on which the cause

of action accrues—not when the employer withdraws, but

when the employer fails to make a payment pursuant to

the pension plan’s demand.

This conflict among the circuits creates a problem of

immense proportions for multiemployer plans like Central

States that cover operations in more than one federal

judicial circuit. Which law applies to a withdrawal from

Central States? Because of ERISA’s broad venue provi-

sions it might be the law of the circuit where the plan is

administered or where the employer resides or does busi-

ness. 29 U.S.C. § 1451(d). While Central States is ad-

ministered in Rosemont, Illinois, within the Seventh Cir-

cuit, only 30% of its billing accounts are in the Seventh

Circuit. Central States has actual or potential withdrawal

liability claims in 42 states and in each of the eleven

numbered judicial circuits. The following table illustrates

the breadth of Central States’ contributing employer base.

Billing Percent

Circuit Accounts of Total

1 12 0.1

2 63 0.7

3 170 1.9

4 293 8.2

5 116 1.3

6 2.944 32.1

7 2,781 30.3

8 1,961 21.4

9 228 2.5

10 409 4.5

11 180 2.0

9,157 100.0%

5

Nor does the location of the billing account resolve the

dilemma on a case by case basis. Many contributing em-

ployers conduct operations across state and judicial boun-

daries. Each of the five largest contributors to Central

States does business in virtually every judicial circuit as

their number of billing accounts suggest:

Billing

Company Accounts

ABF Freight System, Inc. 132

Consolidated Freightways 173

Roadway Express 182

United Parcel Service (UPS) 101

Yellow Freight Systems, Inc. 150

UPS, for example, does business in every state and has

billing accounts in 22 states located in seven federal judi-

cial circuits. Thus, whether an action for collection of

withdrawal liability is timely often cannot be known until

after commencement of litigation in a particular jurisdic-

tion. Until that time, there will generally be at least two

different limitations periods that might be applied.

In sum, the administrative and legal problems created

by the conflict among the circuits has, no doubt, an even

greater impact on Central States than on Petitioner. Many

of the other 2,000 multiemployer pension plans (particu-

larly those located outside the Ninth Circuit) will also

experience these problems to one degree or another. Cen-

tral States, thus, serves as an apt example of why this

conflict must be resolved immediately by granting the

petition for a writ of certiorari.

6

ARGUMENT

I. THE STATUTE OF LIMITATIONS FOR BRING-

ING AN ACTION TO COLLECT WITHDRAWAL

LIABILITY HAS BEEN GIVEN CONFLICTING

INTERPRETATIONS BY THE FIRST, THIRD,

SEVENTH, AND DISTRICT OF COLUMBIA CIR-

CUITS FROM THAT IN THE COURT BELOW.

Under ERISA a complete withdrawal occurs when a

contributing employer permanently ceases to have an ob-

ligation to contribute under the plan, or permanently

ceases all covered operations under the plan. 29 U.S.C.

§ 1383(a). The date of a complete withdrawal is the date

of the cessation of the obligation to contribute or the ces-

sation of covered operations. 29 U.S.C. § 1383(e). Upon

the withdrawal of an employer, the plan must notify the

employer of the amount of any withdrawal, provide the

schedule of payments required of the employer, and col-

lect the withdrawal liability. 29 U.S.C. §$§ 1382 and

1399(b)(1). The statute of limitations for bringing an

action to collect withdrawal liability is found in 29 U.S.C.

§ 1451(f):

(f) An action under this section may not be brought

after the later of—

(1) 6 years after the date on which the cause of

action arose, or

(2) 3 years after the earliest date on which the

plaintiff acquired or should have acquired actual

knowledge of the existence of such cause of action;

The court below ruled that “for actions to recover with-

drawal liability incurred as a result of a complete with-

drawal, . . . the limitations period begins to run from the

date that the conditions for withdrawal are met. ... In

other words, the limitations period begins to run from the

date of complete withdrawal. .. .” Bay Area Laundry v.

Ferbar Corp., 73 F.3d 971, 973 (9th Cir. 1995). The

«7

7

court’s ruling was compelled by its earlier ruling in Board

of Trustees of Constr. Laborers Pension Trust v. Thibodo,

34 F.3d 914 (9th Cir. 1994), and was acknowledged to be

in conflict with Joyce v. Clyde Sandoz Masonry, 871 F.2d

1119 (D.C. Cir. 1989). See 73 F.3d at 973 (Trott, J.

concurring). While the withdrawal at issue in Thibodo

arose under a different provision of the statute (29 U.S.C.

§ 1383(b)), the court saw no ground to distinguish it

from the instant withdrawal under 29 U.S.C. § 1383(a).

Id. The question presented is when does the cause of

action arise—the date of withdrawal, as held by the court

below, or some later date, as held by the other courts of

appeals?

The first of the other courts of appeals to face this ques-

tion was the District of Columbia Circuit in Clyde Sandoz

Magpnry, 871 F.2d 1119 (D.C. Cir. 1989). In that case,

the district court had ruled, as did the court below, that

the six year limitations period ran from the date of the

employer’s complete withdrawal. 87! F.2d at 1121. The

District of Columbia Circuit reversed. That court looked

to 29 U.S.C. § 1451(a), which defines a cause of action

in terms of whether a party is “adversely affected by the

act or omission of any party . . . with respect to a multi-

employer plan.” The court held that a plan is adversely

affected (and thus, a cause of action arises) when the

plan has not received payments which are due and owing.

Id. at 1122. That can only happen after the date of

withdrawal when, having received a demand for payment

from the plan, the employer fails to make a scheduled

payment when due. Indeed, the court noted that the “lan-

guage of the statute . . . points firmly in the direction of

the conclusion that Sandoz’s uncured failure to pay the

sum demanded adversely affected the plan, thus giving rise

to a cause of action.” /d.*

8In other words, a simple missed payment under § 1399(c) (1)

may not be the latest date on which the statute of limitations begins

to run. Under § 1399(c) (5) an employer has 60 days to cure a

The Seventh Circuit next addressed the question in

Central States Pension Fund v. Navco, 3 F.3d 167 (7th

Cir. 1993). There the court held that “the claim accrues

as soon as payment becomes overdue.” /d. at 172. More-

over, the court concluded that “the whole sum becomes

due, and the whole claim accrues, when the first payment’s

missed.” /d. Thus, where the employer misses a series

of payments, the six year statute of limitations runs from

the first missed payment, rather than there being a sepa-

rate limitations period commencing with each missed pay-

ment. Since the first missed payment will always be later

than the date of withdrawal, the Seventh Circuit decision

conflicts with the decision below.*

The Third Circuit has also adopted a rule that the

statute of limitations runs from the employer’s missed pay-

ment, not the date of withdrawal. Machinists Pension

Fund v. Kahle Engineering Corp., 43 F.3d 852 (3rd Cir.

1994). Unlike the Navco court, however, the Third Cir-

cuit held that absent an acceleration of the withdrawal

liability payment schedule by the plan, the six year statute

of limitations runs separately against each missed pay-

ment. /d. at 861. The Third Circuit is thus in conflict

with both the court below and the Seventh Circuit. The

Third Circuit would apparently agree with the District of

Columbia Circuit in Clyde Sandoz. Id. at 860.°

missed payment following a notice from the plan. A cause of

action for a statutory “default” arises on that latter day from

which, we presume, a new limitations period begins to run.

4The Seventh Circuit conflicts with the District of Columbia

Circuit, as well. The District of Columbia Circuit would count

six years from the end of the 60-day cure period of § 1399(c) (5)

while the Seventh Circuit would count from the first missed pay-

ment notwithstanding the cure period.

5 It is not clear, however, whether the Third Circuit would agree

that if the plan accelerates the amount due, the statute runs from

the end of the 60-day cure period of 29 U.S.C. § 1399(c) (5)), as

suggested by the District of Columbia Circuit. And no court has

addressed whether upon acceleration a new 6-year statute of limita-

9

The First Circuit's decision in Giroux Bros. Transp. v.

New England Teamsters & Trucking Indus. Pension

Fund, 73 F.3d 1 (ist Cir. 1996) also conflicts with the

decision below. The First Circuit held that the timeliness

of a plan sponsor’s demand is governed exclusively by

§ 1399(b)(1). That provision requires that a plan’s

demand for withdrawal be made “as soon as practicable”

after the employer’s withdrawal. In Giroux, twelve years

had passed after the date of withdrawal before the plan

demanded payment. The employer had been making con-

tributions, however, even though its collective bargaining

agreement had expired and it was not entitled to con-

tribute. When this error was discovered by the plan, it

demanded withdrawal liability. While the court did not

have occasion to rule whether this demand was made as

soon as practicable, it did make clear that six years from

the date of withdrawal would not be an appropriate limi-

tations period. The court below, by contrast, would have

ruled the plan’s claim barred by the six year statute of

limitations of § 1451(f).

In sum, at lease five courts of appeals are in complete

disarray on the question presented. There is a clear con-

flict between the decision below and each of the decisions

of the First, Third, Seventh, and District of Columbia

Circuits. There is also a clear conflict between the deci-

sions of the Third and Seventh Circuit. Finally, there may

be a conflict between the decisions of the District of Co-

lumbia Circuit and the Seventh Circuit. This Court

should grant the writ of certiorari to resolve these conflicts.

tions commences for the entire withdrawal liability amount or

whether the amounts due prior to the acceleration have separate

limitations periods commencing on their individual due dates with

only the balance of the payment schedule subject to the new

limitations period. ;

10

Il. THE CONFLICTING DECISIONS OF THE COURTS

OF APPEALS PLACE AN UNACCEPTABLE BUR-

DEN ON PENSION PLANS, CONTRIBUTING EM-

PLOYERS, AND THE COURTS AND SUBVERT

STATUTORY PURPOSE.

The conflict in the Circuits places multiemployer plans

like Petitioner and Central States in an untenable position.

The following example will illustrate:

Assume that an employer withdraws on June 1,

1986; the plan demands payment in monthly install-

ments over a 20-year payment schedule with the first

payment due on September 1, 1986; the employer

misses the first payment, but thereafter makes timely

monthly payments through September 1, 1992, when

it ceases all further payments; the plan sends a notice

of default and acceleration on October 1, 1992; the

plan sues for collection on December 1, 1992.

Under the Ninth Circuit’s interpretation, the statute of

limitations would begin to run on June 1, 1986, when

the employer withdrew. Thus, the limitations period

would expire on June 1, 1992, six years later, and the

plan’s December 1, 1992 action would be untimely. Of

course, the plan could have sued immediately on the first

missed payment and under our example, that action would

be timely. But, then, what if the employer made every

payment when due through the sixth anniversary date of

the withdrawal, and then ceased paying?® Or what if a

labor dispute continued for six years after contributions

6 The court suggests at note 4 that an employer might form a

contract for installment payments resulting in a different limita-

tions period. Actually installment payments are required by the

statute and entail no contract. The only choice by the employer is

whether to pre-pay the installment as it is entitled to do under

29 U.S.C. § 1899(c) (4). The court was on the right track, however,

and if it had stayed there, it would have reached the Third Circuit’s

view that the statutory payment schedule be treated like an install-

ment contract with a separate limitations period for each missed

payment. :

11

ceased?" In either case the plan may not sue (and in

the latter case it is barred from even issuing an assess-

ment) until after the sixth anniversary of the withdrawal,

and thus the plan would be out of time to sue.

Under the Seventh Circuit's interpretation, the statute

of limitations would begin to run on September 1, 1986,

when the employer first missed a payment. Thus, the

limitations period would expire on September 1, 1992,

six years later, and the plan’s action would be untimely.

Under the Seventh Circuit’s view, the plan forgives a

missed payment at its peril. If the plan does not sue on

that first missed payment, the employer would be entitled

to cease further payments on the sixth anniversary of its

first missed payment. |

Under the Third Circuit’s interpretation, the statute of

limitations would begin to run on September 1, 1986, only

for that missed payment, and would expire on September

1, 1992, only as to that payment. A separate limitations

period would begin to run when the liability is accelerated

—either October 1, 1992, when the notice is issued, or

maybe on November 30, 1992, which is the last day of

the 60-day period allowed the employer to cure the de-

fault. The plan’s action would be untimely as to the first

missed payment since the limitation period for that one

expired on September 1, 1992. The action would be

timely for the balance of the withdrawal liability since

pe limitation period would not expire until October 1,

1998.

7™Under § 1398(2) a withdrawal does not occur while contribu-

tions are suspended during a labor dispute. If, as is often the case,

a suspension is later deemed permanent, the withdrawal date

relates back to the cessation of contributions (§ 1383(e)), which

may be more than six years ago.

8 The Third Circuit’s decision is susceptible to other interpreta-

tions. When the plan accelerates the claim, does that new date

supplant the original date entirely thus reviving the plan’s claim

for the first missed payment? (This would conform to the District

of Columbia Circuit’s view.) Or does it collapse the limitations

12

Under the District of Columbia Circuit’s interpretation,

the statute of limitations would begin to run on November

30, 1992, which is the last day of the 60-day cure period

following the plan’s default notice. The plan’s action the

next day would be timely for the entire withdrawal assess-

ment because the limitations period on the entire claim

would not expire until November 30, 1998.

As this example shows, a plan cannot be sure when its

claim for withdrawal liability against a withdrawn em-

ployer will become barred by the statute of limitations—

at least until litigation is initiated in a court with a particu-

lar rule. Nor is it enough for a plan to simply count time

from the earliest possible date, the date of withdrawal,

as required by the court below. As we have shown, that

solution will not work in many cases and would be sus-

ceptible to manipulation by withdrawn employers. The

decision below is clearly wrong but that does not fully

resolve the question. Does the statute run from the first

missed payment (Seventh Circuit), the end of the 60-day

cure period following a notice of default (District of

Columbia Circuit), or from each missed payment when

the plan does not exercise its default option (Third Cir-

cuit). Uniform (and effective) administration of the

statute requires resolution of these conflicts as early as

possible. This Court should grant the petition for a writ

of certiorari.

periods on all installments to the original missed payment making

the entire claim untimely under this example? (This would con-

form to the Seventh Circuit’s view.)

13

CONCLUSION

For these reasons the petition for a writ of certiorari

to the United States Court of Appeals for the Ninth Cir-

cuit should be granted.

Respectfully submitted,

THOMAS C. NYHAN *

Genera! Counsel

TERENCE G. CRAIG

CENTRAL STATES, SOUTHEAST

AND SOUTHWEST AREAS

PENSION FUND

9377 West Higgins Road

Rosemont, Illinois 60018-4938

(847) 518-9800

Attorneys for Amicus Curiae

* Counsel of Record