Opposition Brief — Supervalu, Inc. v. Board of Trustees of the Southerwestern Pennsylvania (No. 07-723)

FILED

3

re JAN: 10 2008

“| No. 07-723

OFFICE OF THE CLERK

SUPREME COURT, U.<

Su The

Supreme Court of the Anited States

¢

SUPERVALJ, INC.,

Petitioner,

V.

BOARD OF TRUSTEES OF THE SOUTHWESTERN

PENNSYLVANIA AND WESTERN MARYLAND AREA

TEAMSTERS AND EMPLOYERS PENSION FUND,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

¢

RESPONDENT?’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

4

VINCENT P. SZELIGO

Counsel of Record

BRENDAN DELANEY

WICK, STREIFF, MEYER, O’BOYLE

& SZELIGO, P.C.

1450 Two Chatham Center

Pittsburgh, PA 15219

412-765-1600 (phone)

412-261-3783 (fax)

Counsel for Respondent

January 10, 2008

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTER STATEMENT OF

QUESTION PRESENTED FOR REVIEW

In appropriate circumstances, does the authority

under ERISA section 4212(c), 29 U.S.C. § 1392(c), to

assess withdrawal liability without regard to any

transaction having a principle purpose to evade or

avoid liability, authorize a multi-employer pension

plan to disregard a Termination Agreement where it

is found that the only purpose of the Termination

Agreement is to enable the employer to escape incur-

ring a significant liability to the plan expected as of

the closing date and divide the money diverted from

the plan between itself and another party?

li

PARTIES TO THE PROCEEDING BELOW

The parties to this proceeding are adequately set

forth in the Petition.

CORPORATE DISCLOSURE STATEMENT

The Southwestern Pennsylvania and Western

Maryland Area Teamsters and Employers Pension

Fund is a employee benefit trust fund and is not a

corporation with attendant stock ownership. It has no

parent corporation and there is no publicly held

company that owns 10% or more of the its stock.

TABLE OF CONTENTS

Page

COUNTER STATEMENT OF QUESTION PRE-

SENTED FOR REVIEW

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATUTES INVOLVED IN THE CASE

COUNTER STATEMENT OF THE CASE

SUMMARY OF THE ARGUMENT

ARGUMENT FOR DENIAL OF THE WRIT

I. The Third Circuit’s Decision Does Not

Conflict with Cuyamaca Meats or Any

Other Circuit Court Decision

A. Unlike in Cuyamaca Meats, in the In-

stant Case, the Transaction Violated

MPPAA’s Goals, as Set Forth By Con-

gress in 29 U.S.C. § 100la

II. The Third Circuit’s Decision Will Clarify

the Application of Section 4212(c) 12

A. The Decision Will Not Lead to Confu-

sion by Other Courts 12

B. The Third Circuit’s Decision Does Not

Conflict with the Non-Precedential

ITU Opinion

iv

TABLE OF CONTENTS — Continued

Page

C. The Third Circuit Was Correct In Re-

fusing to Alter the Plain Language of

RE FIER Bi ca hniSucccais idea nioatinchainasnciins

. Section 4212(c) Allows Plans to Dis-

regard Any Transaction Having a

Principal Purpose to Evade or Avoid

Mi si ccxcissda cinascedasthaeeepniniannadcteiatanss

The Third Circuit’s Decision Will Have

Little or No Impact on Courts’ Applica-

Tioth OF CG CRE PAGE ois vicisvscdscnscsaiecsescsnsiane

There Is No Compelling Reason for this

Court to Grant Certiorar...................:::cc08

A. Unlike the Previous Rare Instances in

which this Court has Granted Certio-

rari for MPPAA Cases, this Case Does

Not Involve a Circuit Split ...........

The Third Circuit’s Decision Will Not

Discourage Participation in Pension

Funds But Will Instead Strengthen

a eer Re ER OORT TER SEC Ce ree

SG ANI ip coc go cache stenknnasabentinsscucds\aacsupumradnie

16

19

21

23

25

TABLE OF AUTHORITIES

CASES

Bay Area Laundry & Dry Cleaning Pension

Trust Fund v. Ferbar Corp., 522 U.S. 192

(1997)

Brach’s Confections, Inc. v. McDougall, 320

F. Supp. 2d 726 (N.D. Ill. 2004)

Brown v. Gardner, 513 U.S. 115 (1994)

Chicago Truck Drivers, Helpers & Warehouse

Workers Union Pension Fund v. Zacek Indus-

tries, 1994 U.S. Dist. LEXIS 6483 (N.D. III.

Concrete Pipe & Prods. of California, Inc. uv.

Construction Laborers Pension Trust for

Southern California, 508 U.S. 602 (1997) 25, 26

Cuyamaca Meats, Inc. v. San Diego and Impe-

rial Counties Butchers’ and Food Employers’

Pension Trust Fund, 827 F.2d 491 (9th Cir.

1987), cert. denied, 485 U.S. 1008 (1988) passim

Estelle v. Jurek, 450 U.S. 1014 (1981)

(Rehnquist, J., dissenting from denial of cert.)....... 24

Exxon Mobil Corp. v. Allapattah Servs., Inc.,

545 U.S. 546 (2005)

Federal Trade Commission v. American To-

In re Leckie Smokeless Coal Co., 99 F.3d 573

(4th Cir. 1996), aff’d, United Mine Workers of

America 1992 Ben. Plan v. Leckie Smokeless

Coal Co., 520 U.S. 1118 (1997)

TABLE OF AUTHORITIES — Continued

Page

ITU Pension Plan and Ft. Worth Star Tele-

gram, 5 E.B.C. 1193 (E. Mittleman Arb.

14, 15, 16, 19

John J. Nissen Baking Co. v. New England

Teamsters & Trucking Industry Pension

Fund, 737 F. Supp. 679 (D. Me. 1990)

Jos. Schlitz Brewing Co. v. Milwaukee Brewery

Workers’ Pension Plan, 3 F.3d 994 (7th Cir.

Layne & Bowler Corp. v. Western Well Works,

261 U.S. 387 (1923)

Milwaukee Brewery Workers’ Pension Plan uv.

Jos. Schlitz Brewing Co., 513 U.S. 414 (1995)....... 25

N.L.R.B. v. Pittsburgh S.S. Co., 340 U.S. 498

(1951)

Pension Benefit Guaranty Corp. v. R.A. Gray &

I TD ccecancssavocnsessneascoassosscssoencss 9

Pension Benefit Guaranty Corp. v. White Con-

solidated Industries, 998 F.2d 1192 (3d Cir.

1993), cert. denied, White Consol. Industries,

Inc. v. Pension Ben. Guar. Corp., 510 U.S.

eo scadawaniicneoseccav 13, 14

Powell v. Nevada, 511 U.S. 79 (1994) ...0.. eee. 22

Santa Fe Pac. Corp. v. Cent. States, Se. & Sw.

Areas Pension Fund, 22 F.3d 725 (7th Cir.

1994), cert. denied, 513 U.S. 987 (1994) passim

vil

TABLE OF AUTHORITIES — Continued

Page

Sentilles v. Inter-Caribbean Shipping Corp.,

Sherwin-Williams Co. v. New York State Team-

sters Conference Pension and Retirement

Fund, 158 F.3d 387 (6th Cir. 1998), cert. de-

nied, 526°U.S. 1017 (1999)..................000.024 18, 19, 26

Sherwin-Williams Co. and New York State

Teamsters Conference Pension and Retire-

ment Fund, 17 E.B.C. 2725 (M. Gertner, Arb.

1994), aff'd, Sherwin-Williams Co. v. New

York State Teamsters Conf. Pension & Retire-

ment Fund, 969 F.Supp. 465 (N.D. Ohio

1997), and aff'd, Sherwin-Williams Co. v. New

York State Teamsters Conf. Pension & Retire-

ment Fund, 158 F.3d 387 (6th Cir. 1998) ................ 17

Teamsters Pension Trust Fund uv. Central

Michigan Trucking, Inc., 698 F. Supp. 698

ee aman seenaceuase 19

Trustees of Teamsters Pension Trust Fund of

Philadelphia and Vicinity v. Federal Express

Corp., 1995 WL 791371 (D. Del. 1995)................... 20

UMWA 1992 Ben. Plan v. Leckie Smokeless

Coal Co., 201 B.R. 163 (S.D. W.Va. 1996)......... 21, 22

United States v. E.I. DuPont De Nemours &

Co., Inc., 432 F.3d 161 (8d Cir. 2005) ..................... 16

United States v. Johnston, 268 U.S. 220 (1925) ......... 24

United States v. Lowe, 118 F.3d 399 (5th Cir.

ce ee ae 16

TABLE OF AUTHORITIES — Continued

Page

STATUTES

26 UBL, S$ OI04, OF O08. ccicicicsicuucneanaee 21, 22, 23

WO LIAS. S Fie Sidon 21, 22, 23

BO US TEAS. 9 BOI wi incccisssscnscsscrmceaeaeee passim

BO USA, © READ oss iesciconsccnevnis tte ae 7

29 UTGA.. & TR os csisviccasneccaa ee 7

29 US. 8 ROAM) onsisicsiccarticsnee ee 8

BO UO TSAS. 9 LO iviscsxsssatancataccene eae 13, 14

Multiemployer Pension Plan Amendments Act

of 1980, 29 U.S.C. § 1381, et seg. (ERISA

9 4B) 5 os0craisicasccmntasnseioieeeen eee passim

29 U.S.C. § 1381(a) (ERISA § 4201(a))....0.. ee. 6

29 U.S.C. § 13883 (ERISA § 4203) ...............00. ee 20

29 U.S.C. § 13883(a) (ERISA § 4203(a)).........0000000... 20

29 U.S.C. § 1392(c) (ERISA § 4212(c))............ passim

29 U.S.C. § 1401(e) (ERISA § 4221(e))............. 27, 28

OTHER AUTHORITIES

H.R. Rep. 869, 96th Cong., 2d Sess., 67,

reprinted in 1980 U.S. Code Cong. & Ad.

INOW DOUG oaiicsscssxssacnschidsepacanecassesieaegeeeee 8

126 Cong. Rec. 29038 (AGO) vicisncss.ccintsccesstenneneee 6

138 Cong. Bec. Si 7TGOS (1982) -i....scsscscccsscscnounnnnees 22

RO Chem, BBD iia ssnsccciccsinccrceciesscss eee 14, 20

TABLE OF AUTHORITIES ~— Continued

Page

PBGC Opn. 83-18 . conetiaaeal jsakabeasuiaedenele 20

PBGC Opn. 84-7 ....... anniv 2 PRR te 20

PBGC Opn. 85-15 .... sielooe

Sup. Ct. Rule 10... | 12,15

Sup. Ct. Rule 10(a) aa

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Respondent, the Board of Trustees of the South-

western Pennsylvania and Western Maryland Area

Teamsters and Employers Pension Fund (“Fund”),

respectfully requests that the Court deny the Petition

for a Writ of Certiorari (“Petition”) submitted by

Petitioner, SUPERVALU, Inc.

*

OPINIONS BELOW

The opinions below are adequately set forth in

the Petition.

JURISDICTION

The jurisdictional requisites are adequately set

forth in the Petition.

STATUTES INVOLVED IN THE CASE

Petitioner is correct that this case involves provi-

sions of the Employee Retirement Income Security

Act of 1974 (“ERISA”), as amended by the Multiem-

ployer Pension Plan Amendments Act of 1980

(“MPPAA”), 29 U.S.C. § 1381, et seq. Petitioner is also

correct that the primary statute in the case is section

4212(c) of ERISA

2

However, Petitioner fails to identify 29 U.S.C.

§ 100la, a statutory provision which was chiefly

relied upon by the Third Circuit for its interpretation

of section 4212(c). That statute, which expressly sets

forth “Additional Congressional Findings and Decla-

ration of Policy,” is quoted extensively by the Respon-

dent in this Brief.

¢

COUNTER STATEMENT OF THE CASE

Respondent Board of Trustees of the South-

western Pennsylvania and Western Maryland Area

Teamsters and Employers Pension Fund (“Fund”)

determined that withdrawal liability under the

Multiemployer Pension Plan Amendments Act of 1980

(“MPPAA”) should be based on the date that employ-

ment terminated at a facility being shut down by

SUPERVALU, Inc. (“SUPERVALU”) and covered

under collective bargaining agreements requiring

contributions to the Fund. In reaching this determi-

nation, the Fund applied ERISA section 4212(c) and

disregarded a Termination Agreement’s terms which

ended SUPERVALU’s obligation to contribute on the

day before the last day of the Fund’s July 1,

2001/June 30, 2002 plan year, which was four weeks

prior to the date employment terminated at the

facility. SUPERVALU believed that this four week

premature cessation of pension coverage would allow

it to escape a substantial withdrawal liability as-

sessment based on the facility closing date. Petitioner

does not contest the fact that the sole purpose of the

3

transaction was an attempt to escape imposition of

withdrawal liability.

The factual findings of the arbitrator, which were

left undisturbed in all subsequent court decisions,

were that SUPERVALU’s purpose in structuring the

Termination Agreement was to avoid withdrawal

liability and share the savings with the soon to be

terminated employees. Pet. App. 71a-75a. The arbi-

trator rejected Petitioner’s suggestion to create an

exception based on the union’s acquiescence to the

transactions, and therefore, upheld the Fund’s as-

sessment. Pet. App. 89a-90a.

The district court, adopting the opinion of the

magistrate judge, Pet. App. 39a-40a, concluded that

while the Termination Agreement between SUPER-

VALU and the union “seems, on its face, unfair,” it

was not illegal. It concluded that MPPAA made it

“possible for employers and unions to squeeze

through statutory loopholes in order to realize an

economic advantage at the expense of others.” Pet.

App. 65a.

The Fund appealed the district court’s reversal of

its determination that section 4212(c) permitted it to

disregard the Termination Agreement’s terms. The

Court of Appeals for the Third Circuit held that since

the only purpose of the Termination Agreement was

to evade or avoid withdrawal liability, and since the

transaction was contrary to the statutory purpose of

MPPAA, the district court erred in creating an excep-

tion to the plain language of section 4212(c).

¢

+

SUMMARY OF THE ARGUMENT

This case presents very unique and unusual facts

in which an employer and union terminate pension

coverage for employees at a facility which was to be

shut down four weeks later with the expectation that

the premature termination would allow the employer

to escape a substantial withdrawal liability assess-

ment arising from the Fund’s deteriorating funding

status.

Petitioner’s contention that the Third Circuit’s

interpretation and application of section 4212(c)

conflicts with a Ninth Circuit decision fails to account

for the differing factual situations which both courts

analyzed. The Third Circuit itself explained that its

decision was not in conflict with that of the Ninth’s

Circuit based on the different factual circumstances

of the transactions in the two cases.

The extenuated hypothetical cases presented by

Petitioner are not actual cases or controversies.

Speculation over potential confusion over the prece-

dent of this case does not warrant the grant of certio-

rari. Furthermore, the Third Circuit’s analytical

approach, interpreting a statute according to its plain

meaning and consistent with statutory findings and

policy, is sound.

4)

ARGUMENT FOR DENIAL OF THE WRIT

I. The Third Circuit’s Decision Does Not

Conflict with Cuyamaca Meats or Any

Other Circuit Court Decision

Petitioner claims that the Third Circuit’s decision

conflicts with the Ninth Circuit’s decision in Cuya-

maca Meats, Inc. v. San Diego and Imperial Counties

Butchers’ and Food Employers’ Pension Trust Fund,

827 F.2d 491 (9th Cir. 1987). Petition 14-18. However,

there is no conflict between those two cases because

the Third Circuit’s decision involved the application

of section 4212(c) to unique facts, which were very

different than those in Cuyamaca Meats. Both the

Third and Ninth Circuits considered the factual |

patterns of each case, and employed the same ana-

lytical approach, looking at both the plain language

and the goals of the statute. The Third Circuit prop-

erly applied section 4212(c) to the transaction in the

instant case, explaining that, unlike Cuyamaca

Meats, the distinctive factual setting underlying this

transaction is contrary to MPPAA’s statutory purpose,

as set forth in MPPAA itself at 29 U.S.C. § 1001a.

A. Unlike in Cuyamaca Meats, in the In-

stant Case, the Transaction Violated

MPPAA’s Goals, as Set Forth By Con-

gress in 29 U.S.C. § 100la

The Third Circuit recognized that although there

are superficial similarities between the instant case

and Cuyamaca Meats, a closer look at the cases

reveals important distinctions. It found that, like the

6

Termination Agreement entered into by the Peti-

tioner, the transaction in Cuyamaca Meats also

violated the plain meaning of the statute. Pet. App.

24a, fn 10. However, unlike the Termination Agree-

ment, the transaction in Cuyamaca Meats “did not

frustrate the purpose of the statute,” and, as a result,

the Ninth Circuit had “held that the employers did

not violate the statute.” Jd.

In its decision, the Ninth Circuit looked at

whether the transaction violated the purpose of

MPPAA. In doing so, it found that the purpose of 29

U.S.C. § 1381(a), which imposes withdrawal liability,

“is to ensure that multiemployer plans are not ren-

dered insolvent by withdrawing employers.” Cuya-

maca Meats, 827 F.2d at 495-496.’

Turning to the facts of the case before it, the

Ninth Circuit determined that the transaction did not

violate the purpose of MPPAA. It reached this conclu-

sion because the employers’ delay in withdrawing

from the fund did not threaten the fund’s financial

stability. Thus, because of the unique circumstances

surrounding the transaction, the delay did not bring

about the harm that MPPAA was enacted to remedy.

The Employers’ reaction to the MPPAA, their

delay in withdrawing from the Pension Fund,

did not undermine the goals of the MPPAA. If

an employer hesitates to withdraw from a

' The Ninth Circuit also looked at section 4212(c)’s legisla-

tive history. Cuyamaca Meats, 827 F.2d at 499 (citing 126 Cong.

Rec. 23038 (1980) (statement of Rep. Frank Thompson)).

i

multiemployer pension fund which has high

unfunded benefit liability, the pension fund

escapes the dangers sought to be abated by

the withdrawal liability provisions. The Em-

ployers’ May 5, 1983, offer to Local 229A,

and the Employers’ resulting delay in with-

drawal from the Pension Fund was a candid

reaction to the changing financial status of

the Pension Fund and to the provisions of

the MPPAA. The May 5, 1983, offer posed no

threat to the financial stability of the Pension

Fund.

Id. (emphasis added)

To determine whether the Termination Agree-

ment violated the statutory goals, the Third Circuit

looked at 29 U.S.C. § 100la, which is titled “Addi-

tional Congressional findings and declaration of

policy.” The Third Circuit quoted 29 U.S.C. § 1001a(a)

for the proposition that “withdrawals of contributing

employers from a multiemployer pension plan fre-

quently result in substantially increased funding

obligations for employers who continue to contribute

to the plan, [adversely affecting the plan,] its partici-

pants and beneficiaries, and labor-management

relations.” (quoted at Pet. App. 8a).

29 U.S.C. § 1001a(b) contains additional Congres-

sional findings indicating a desire to encourage pension

plan continuation and to protect plan participants.

The Congress further finds that —

(1) it is desirable to modify the current

multiemployer plan termination insurance

§

provisions in order to increase the likelihood

of protecting plan participants against bene-

fit losses; and

(2) itis desirable to replace the termination

insurance program for multiemployer pension

plans with an insolvency-based benefit pro-

tection program that will enhance the finan-

cial soundness of such plans, place primary

emphasis on plan continuation, and contain

program costs within reasonable limits.

Section 1001la(c) contains MPPAA’s policy goals,

which include “to alleviate certain problems which

tend to discourage the maintenance and growth of

multiemployer pension plans, ... to provide reason-

able protection for the interests of participants and

beneficiaries of financially distressed multiemployer

pension plans, and ... to provide a financially self-

sufficient program for the guarantee of employee

benefits under multiemployer plans.”

In addition to citing section 100la, the Third

Circuit also quoted MPPAA’s legislative history,

which indicated that the statute was intended to

“relieve the funding burden on remaining employers

and to eliminate the incentive to pull out of a plan

which would result if liability were imposed only on a

mass withdrawal by all employers.” H.R. Rep. 869,

96th Cong., 2d Sess., 67, reprinted in 1980 U.S. Code

Cong. & Ad. News 2918, 2935. (Cited in Pet. App.

9

8a). The Third Circuit additionally cited a number of

cases indicating that MPPAA was intended to ensure

that withdrawing employers paid a share of a plan’s

unfunded benefit liability. Pet. App. 7a-8a, 23a-24a.

The Third Circuit found that “SUPERVALU

engaged in exactly the type of conduct Congress was

trying to prevent,” and that its transaction “threat-

ened the financial stability of the Fund as SUPER-

VALU withdrew in order to avoid paying its share of

* MPPAA was enacted to discourage employers’ efforts to

“same the system” by terminating participation before they

became legally responsible for the plan’s existing unfunded

benefit liability. See Pension Benefit Guaranty Corporation v.

R.A. Gray & Company, 467 U.S. 717 (1984). In Gray, this Court

set forth the history of the enactment of MPPAA, and described

the factors that motivated Congress to enact the statute. After

ERISA was passed, but prior to the enactment of MPPAA,

withdrawing employers were not, in most cases, responsible for

their share of the plan’s unfunded vested benefits. Jd. at 721.

The system encouraged employers to withdraw as soon as

possible to avoid paying the cost increases caused by the with-

drawals of other contributing employers, the “so-called inherited

liabilities.” Jd. at 722 (fn 2)

In order to remedy this (and other flaws in the pension

benefit statutory scheme), Congress passed the MPPAA in 1980.

See id. at 722-723. Congress was so intent on discouraging

withdrawals that it made the MPPAA effective retroactively. Id.

at 730-731. It was “concerned that employers would have an

even greater incentive to withdraw if they knew that legislation

to impose more burdensome liability on withdrawing employers

was being considered,” and thus made the statute retroactive “to

prevent employers from taking advantage of a lengthy legisla-

tive process and withdrawing while Congress debated necessary

revisions in the statute.” /d.

10

the existing unfunded vested benefit liability.” It thus

concluded that “SUPERVALU’s conduct violated not

only the plain language of the statute, but also its

purpose.” Pet. App. 23a-24a.

The distinctions the Third Circuit made between

this case and Cuyamaca Meats echoes similar distinc-

tions made by Arbitrator Nagle in the initial decision

issued in the dispute between Petitioner and Respon-

dent. Arbitrator Nagle pointed out that the Ninth

Circuit had emphasized that the transaction, which

involved a continuation of contributions to the plan,

did not violate MPPAA’s statutory goals, and did not

harm the fund’s financial stability. He contrasted this

with the transaction in the instant case which arose

in a “significantly different context.” Pet. App. 85a-

86a.

Arbitrator Nagle noted that the Ninth Circuit

had focused on the purpose of section 4212(c), rather

than the statute’s language, and that it had deter-

mined that the “purposes of this provision did not

warrant its application to the facts before it.” Jd. at

84a (emphasis in original). According to Arbitrator

Nagle, “the Ninth Circuit concluded ... that if an

employer manages to continue its contributions

through an entire plan year in which the pension

plan’s position has markedly improved, the employer

has acted consistently with the broader statutory

purposes, and should not be penalized for having

done so.” In such a situation, the payment of with-

drawal liability “would simply provide a windfall to

the Plan and the remaining employers.” Jd.

11

Arbitrator Nagle found that “the facts in the

instant case are quite the opposite,” with Petitioner

withdrawing from the Fund just before the end of the

plan year in an “attempt[] to avoid any responsibility

for the unfunded liabilities” incurred by the Fund. Id.

at 84a-85a. “As a result, the full burden of funding

those liabilities would be shifted to those contributing

employers who remained — one of the consequences

that MPPAA was specifically intended to prevent.” Jd.

at 85a. Petitioner’s withdrawal was especially harm-

ful to the Fund, given that “the Company represented

23% of the Fund’s contribution base.” Jd.

Because of the significant factual differences

between the two cases, there is no conflict between

the Third Circuit’s opinion and Cuyamaca Meats. As

the Third Circuit and Arbitrator Nagle recognized,

the key factor for the court in Cuyamaca Meats was

the fact that the plan’s funding improved between the

old and new plan years. The Ninth Circuit deter-

mined that a transaction which delays an employer’s

withdrawal into a year with improved funding, and

which does not harm the fund, is not an evasion or

avoidance of withdrawal liability. In other words, the

aim was not to evade a liability, but rather to get a

share of the funding improvement.

The Third Circuit was faced with a completely

different fact pattern, one in which an employer took

the unusual step of terminating a long-standing

benefit just weeks before the benefits would have

ended as a result of a facility closing. Pet. App. 22a.

Unlike the continuation of contributions past a plan

12

year in Cuyamaca Meats, Petitioner attempted to

hasten the cessation of its obligation to contribute to

the Fund. Unlike Cuyamaca Meats, this cessation

would have significantly harmed the Fund.

Because of these factual dissimilarities, the Third

Circuit was able to harmonize its decision with Cu-

yamaca Meats. The application of different sets of

stipulated facts to legal precepts leading to different

conclusions does not create a “conflict with the deci-

sion of another US Court,” Supreme Court Rule 10,

and does not justify this Court granting certiorari.

II. The Third Circuit’s Decision Will Clarify

the Application of Section 4212(c)

A. The Decision Will Not Lead to Confu-

sion by Other Courts

Petitioner sets forth extravagant hypotheticals to

try to show that the Third Circuit’s decision will

cause a slippery slope, leading courts to incorrectly

apply section 4212(c). Specifically, it claims that the

Third Circuit’s opinion allows the statute to be ap-

plied to an unlimited range of transactions, and will

thus “destabilize the law applicable to MPPAA with-

drawal liability.” Petition 18-21.

Section 4212(c) should be applied in accordance

with the plain language of the statute, which states

that it may be applied to “any transaction” which has

“a principal purpose ... to evade or avoid [with-

drawal] liability.” (emphasis added). The Third Cir-

cuit’s opinion was in accord with the statutory text,

13

and refused to apply an exception which does not

appear in the language of the statute itself. It there-

fore applied section 4212(c) to a transaction whose

principal purpose was unquestionably to evade or

avoid withdrawal liability.”

Petitioner fails to explain how a broad interpre-

tation (which is in accordance with the broad lan-

guage of the statute) could lead to confusion. There is

no reason that courts and arbitrators should have any

more trouble applying a broad interpretation than a

narrow one. In fact, almost fifteen years ago, the

Third Circuit refused to limit the term “transaction”

in applying 29 U.S.C. § 1369(a), the parallel statute

to section 4212(c) which applies to single employer

pension plans. See Pension Benefit Guaranty Corp. v.

White Consolidated Industries, Inc. 998 F.2d 1192 (3d

Cir. 1993 ), cert. denied, White Consol. Industries, Inc.

vu. Pension Ben. Guar. Corp., 510 U.S. 1042 (Jan. 10,

1994) (No. 93-661).* Despite this broad interpretation

* See the Third Circuit’s decision, Pet. App. 21a-22a (“There

is nc doubt that SUPERVALU had the intent required by the

statute.... As there was no other reason for SUPERVALU to

enter the Termination Agreement, its intention to evade or avoid

withdrawal liability was a principal purpose, if not its only

purpose.”) Petitioner does not contradict this finding in their

Petition.

* In White Consolidated, 998 F.2d 1192, 1194-1195 (3d. Cir.

1993), the Pension Benefit Guarantee Corporation applied

section 1369(a) to disregard a transaction in which subsidies

were paid by a corporation to a pension plan after it had sold a

failing business which sponsored the plan. The contributions

were meant to prop up the plan so that it could survive for a few

years, relieving the former employer of liability. Jd. at 1195. The

(Continued on following page)

14

by the Third Circuit, there has not been any apparent

confusion among lower courts regarding the applica-

tion of section 1369(a).”

B. The Third Circuit’s Decision Does Not

Conflict with the Non-Precedential

ITU Opinion

Petitioner also argues that certiorari should be

granted because it believes that the Third Circuit’s

decision is at odds with the arbitrator’s decision in

ITU Pension Plan and Ft. Worth Star Telegram, 5

E.B.C. 1193 (E. Mittleman Arb. 1984). Petition 22-25.

However, like Cuyamaca Meats, ITU can be recon-

ciled with the Third Circuit’s decision because that

court found that the statute broadly applied to “any transaction

. to evade liability,” which could include the contributions

made by the company. Jd. at 1200.

* In a footnote, Petitioner claims that almost every advisory

opinion issued by the Pension Benefit Guarantee Corporation

(“PBGC”) that mentions section 4212(c) “has involved an asset

sale, the sale or spin-off of a subsidiary, or both.” Petition 21-22,

fn 8. However, the PBGC never suggested that these were

the only scenarios in which section 4212(c) could be applied.

Furthermore, given the unique set of facts in this case, it is not

unusual that the PBGC would not have been presented with a

similar case. Finally, as the PBGC itself recognizes, it is not the

proper channel for a dispute regarding withdrawal liability. See,

e.g., PBGC Opn. 81-41 (MPPAA “provides that any disputes

between a plan sponsor and an employer on these issues are

to be resolved first through arbitration and, if necessary, in

the courts,” and, as a result, “the PBGC will ordinarily avoid

interjecting itself in such a determination by issuing an opinion

on the application of the law.”)

15

case had a vastly different fact pattern than the

instant case.

As an initial matter, Respondent points out the

obvious fact that /TU was a decision issued by an

arbitrator, not a circuit court. Even if this Court

believes that the decisions conflict, under Supreme

Court Rule 10, a conflict between an arbitration

decision and a circuit court case does not justify

granting certiorari.

Additionally, Petitioner ignores the important

factual distinctions made by Arbitrator Nagle be-

tween this case and /TU. Section I of this Brief cited

language from Arbitrator Nagle’s decision which

distinguished the instant case from Cuyamaca Meats

because the employer’s actions did not harm the fund,

and any payment of withdrawal liability could be a

windfall for the fund. Arbitrator Nagle applied the

same analysis to [TU, distinguishing that case from

the case before him. Pet. App. 84a-85a.

Arbitrator Nagle correctly analyzed /TU, in

which Arbitrator Mittleman recognized that his

decision was dependent on the specific facts of the

case. Like Cuyamaca Meats, ITU involved an em-

ployer’s attempt to delay its withdrawal from a fund

into the next plan year so that it could benefit from

the fund’s improved financial status. In JTU, 5 EBC

at 1198, the arbitrator found that “the critical fact...

is that contributions were made for the full” previous

plan year. Because there “was no unfunded vested

liability of the Plan as of the end of” the previous

plan year, “any withdrawal liability payment

16

would simply be a windfall to the Plan, and the

remaining employers.” Jd. at 1199. The decision was

thus greatly influenced by the fact that the transac-

tion would not harm the fund, and that a withdrawal

liability assessment would only be a windfall for the

fund. By way of contrast, in the instant case, the

Petitioner sought to exit the Fund before the next

plan year, rather than delaying its departure, causing

significant harm to the Fund.

C. The Third Circuit Was Correct In Re-

fusing to Alter the Plain Language of

Section 4212(c)

Petitioner criticizes the Third Circuit’s decision

for its reliance on dictionary definitions to define the

term “evade or avoid.” Citing the District Court’s

decision, it claims that the phrase should have been

interpreted as a “term of art,” which only refers to

fraudulent transactions. Petition 24-25. However, the

Third Circuit interpreted section 4212(c) in accor-

dance with its plain language, which does not limit

its application to fraudulent or sham transactions.

Because the words used in section 4212(c) were

not defined in the statute, the Third Circuit found it

necessary to rely on “their ordinary and natural

meaning, United States v. E.I. DuPont De Nemours &

Co., Inc., 432 F.3d 161, 171 (3d Cir. 2005), and ‘the

overall policies and objectives of the statute,’ United

States v. Lowe, 118 F.3d 399, 402 (5th Cir. 1997)

(citing Brown v. Gardner, 513 U.S. 115, 117-19, 115

S.Ct. 552, 130 L.Ed.2d 462 (1994)).” Pet. App. 19a. It

17

used the dictionary definitions to provide a “plain

language”’ reading of the statute, under which “the

provision applies when a contributing employer

enters a transaction with a principal purpose of

escaping its duty to pay withdrawal liability to the

plan or fund.” /d. at 20a.

The Third Circuit correctly refused to add an

exception to the plain language of section 4212(c),

which does not require that transactions be fraudu-

lent in order to be disregarded. It found that “the

statute is clear” that it is not limited “to sham or

fraudulent transactions,” and, as a result, the Third

Circuit did not have to look to the statute’s legislative

history. Pet. App. 27a-28a.

This refusal to elevate legislative history over the

plain statutory text was in accord with this Court’s

precedent.’ The Third Circuit cited Exxon Mobil Corp.

* The Third Circuit’s decision was not the first to employ

dictionary definitions in defining the terms of section 4212(c).

See Chicago Truck Drivers, Helpers & Warehouse Workers Union

Pension Fund v. Zacek Indus., 1994 WL 201042, *3 (N.D. IIL.

1994) (using dictionary definitions to reject the employer’s

argument that the term “transaction” should be limited);

Sherwin-Williams Co. and New York State Teamsters Conference

Pension and Retirement Fund, 17 E.B.C. 2725, 2748 (M. Gert-

ner, Arb. 1994), aff’d, Sherwin-Williams Co. v. New York State

Teamsters Conf. Pension & Retirement Fund, 969 F. Supp. 465

(N.D. Ohio 1997), and aff’d, Sherwin-Williams Co. v. New York

State Teamsters Conf. Pension & Retirement Fund, 158 F.3d 387

(6th Cir. 1998) (using dictionary definitions of “principal” and

“purpose.”).

" Respondent does not concede that section 4212(c)’s

legislative history implies a requirement that a transaction

(Continued on following page)

18

v. Allapattah Servs., Inc., 545 U.S. 546, 567-68 (2005)

in support of the proposition that it would “not allow

an examination of the legislative history to create an

ambiguity where none exists in the statute.” Pet. App.

28a. In Exxon, 545 U.S. at 568, this Court found that

“the authoritative statement is the statutory text,

not the legislative history or any other extrinsic

material.”

The Third Circuit also cited Santa Fe Pac. Corp.

v. Cent. States, Se. & Sw. Areas Pension Fund, 22

F.3d 725 (7th Cir. 1994) in support of its argument

that the plain language of the statute “in no way

suggests that it only applies to sham or fraudulent

transactions.” Pet. App. 27a. In Santa Fe, 22 F.3d at

729-730, the Seventh Circuit found that the “statu-

tory criterion is not whether the transaction is a sham,

having no purpose other than to defeat the goals of

the [MPPAA] by leaving the other employers in the

multiemployer pension plan holding the bag. It is

whether the avoidance of withdrawal liability ... is

one of the principal purposes of the transaction.” See

also Sherwin-Williams Co. v. New York State Teamsters

Conference Pension and Retirement Fund, 158 F.3d

387, 395 (6th Cir. 1998) (finding that section 4212(c)

requires only that the desire to evade or avoid with-

drawal liability be “a principal purpose” of the trans-

action, not “the principal purpose,” and therefore the

must be a sham. The Third Circuit merely stated that it was not

necessary for it to consider the Act’s legislative history.

19

fact that a transaction may be motivated by multiple

principal purposes does not negate the application of

the statute.)

The only decision cited by Petitioner in support of

its “sham transaction” argument is TU, which is an

arbitrator’s decision. Its failure to cite any circuit

court opinions to contradict the findings in the Third

Circuit’s decision, Santa Fe, and Sherwin-Williams

means that there is no circuit court split on the issue.

There is thus no reason for this Court to grant certio-

rari given the unambiguous statutory language which

does not require that a transaction be a sham or one

that is devoid of economic substance.

D. Section 4212(c) Allows Plans to Disre-

gard Any Transaction Having a Prin-

cipal Purpose to Evade or Avoid

Liability

Petitioner criticizes the Third Circuit’s determi-

nation that an employer does not have the right to

choose the date of its withdrawal, and claims that

its date of withdrawal was “June 29, 2002 when it

ceased to have an obligation to contribute to the Fund

under the Termination Agreement.” Petition 25-27."

* It is notable that Petitioner does not cite any cases in

making this argument. Courts have uniformly found that

section 4212(c) allows plans to ignore the purported date of

withdrawal if the transaction was enacted to evade or avoid

withdrawal liability. See, e.g., Teamsters Pension Trust Fund v.

Central Michigan Trucking, Inc., 698 F. Supp. 698, 701 (W.D.

(Continued on following page)

20

Petitioner’s argument is based on an inaccurate

reading of the statute, and is at odds with the lan-

guage of MPPAA. It is also an argument on the

merits, and does not present any circuit conflict

which would justify this Court granting certiorari.

The Third Circuit’s determination of the date of

withdrawal is derived from the plain language of the

statute. The court found that, under section 4212(c),

transactions which violate the statute can be disre-

garded. Id. at 24a. Because the Third Circuit “deter-

mined that the Termination Agreement violated

section 4212(c), the Agreement must be disregarded,”

and it had to “return to the statute to determine

when SUPERVALU actually withdrew.” Pet. App.

24a-25a. Under 29 U.S.C. § 1383, “[t]he date of com-

plete withdrawal is the day on which the employer’s

obligation to contribute to the plan ceases or when all

covered operations cease.” Id. at 25a. Given that

“SUPERVALU’s cessation of all covered operations

Mich. 1987) (section 4212(c) “allows transactions made to evade

or avoid withdrawal liability to be ignored”); and Trustees of

Teamsters Pension Trust Fund of Philadelphia and Vicinity v.

Federal Express Corp., 1995 WL 791371, *4 (D. Del. 1995) (if a

sale of a subsidiary is “undertaken principally to avoid MPPAA

liability, withdrawal liability would properly be assessed” as if

the sale never took place.) The PBGC has provided similar

guidance. PBGC Opinion Letters 81-41, 83-18, and 84-7 indicated

that, regardless of when a withdrawal occurs under section

1383(a), the transactions could still be ignored by the funds under

section 1392(c). See also PBGC Op. Letter 85-15 (section 4212(c)

“may be applied by a plan, if all the circumstances of the transac-

tion so warrant, to disregard the transaction.”).

21

occurred before its obligation to contribute ceased ...

SUPERVALU actually withdrew when it ceased all

covered operations ... on July 27, 2002.” Id. at 25a-

26a.

The Third Circuit dismissed “SUPERVALU’s

argument that ignoring the Termination Agreement

enables the Fund to just pick a withdrawal date.” Id.

at 25a, fn 12. “[I]gnoring the Termination Agreement

does not enable the Fund to pick SUPERVALU’s

withdrawal date on a whim.” Jd. After a transaction

is ignored, the date of withdrawal is determined by

MPPAA.” Id.

E. The Third Circuit’s Decision Will Have

Little or No Impact on Courts’ Applica-

tion of the Coal Act

Petitioner also claims that certiorari should be

granted because the Third Circuit’s decision “will also

affect implementation of” 26 U.S.C. § 9722, “the

‘evade or avoid’ provision” of the Coal Industry Re-

tiree Health Benefit Act of 1992 (“Coal Act”), 26

U.S.C. § 9701, et seq. Petition 20. Petitioner also

contends that the decision conflicts with UMWA 1992

° Petitioner also claims that the Third Circuit incorrectly

“assumes an employer that arranges its affairs in a manner that

results in a withdrawal in a year with less liability is escaping

its ‘duty’ to pay withdrawal liability.” Petition 28. The fallacy of

Petitioner’s implication is evident from the Third Circuit’s

noncritical discussion of the lower year liability result reached

by the Ninth Circ: it in Cuyamaca Meats. Pet. App. 24a, fn 10.

22

Ben. Plan v. Leckie Smokeless Coal Co., 201 B.R. 163,

174 (S.D. W.Va. 1996), which it claims is “the only

judicial opinion construing” that statute. Id.

As an initial matter, the Coal Act argument

should not be considered by the Court because Peti-

tioner raised it for the first time in its Petition for

Certiorari. See Powell v. Nevada, 511 U.S. 79, 85, fn *

(1994) (“Because the issue was not raised, argued, or

decided below, we should not settle it here.”).

The Coal Act arguments may also be dismissed

on the merits. Petitioner quotes legislative history

indicating that the Coal Act provision is to be “inter-

preted consistent with Section 4212(c).” 138 Cong.

Rec. S17603 (daily ed. Oct. 8, 1992) (quoted at Peti-

tion 21). However, it cannot cite any case in which a

circuit court decision interpreting section 4212(c)

(such as Cuyamaca Meats or Santa Fe) was cited by a

court in interpreting the Coal Act. Additionally, the

fact that the only case involving this provision is a

district court decision which is over 10 years old

means that the effect, if any, that the Third Circuit’s

decision will have on the Coal Act is quite limited.

Because the facts of the two cases are so dissimi-

lar, Leckie does not conflict in any way with the Third

Circuit’s decision. In that case, a company was seek-

ing to buy bankrupt coal operations without assum-

ing liabilities relating to retiree health care under the

Coal Act. Leckie, 201 B.R. at 167-168. Unlike the

instant case, in Leckie, the party against whom

liability was being asserted was a stranger to the

23

plan until the transaction was consummated. Peti-

tioner also ignores the distinctions made in Leckie

between that case and Santa Fe, one of the few circuit

court decisions interpreting section 4212(c). Leckie

stated that Santa Fe was “inapposite to the case at

bar and distinguishable by its extensive factual

record on the issue of intent.” Jd. at 174. It went on to

list several distinctions between the two cases, in-

cluding differences between section 4212(c) and the

Coal Act provision at issue in Leckie. See id.”

lil. There Is No Compelling Reason for this

Court to Grant Certiorari

This Court cannot grant a writ of certiorari

unless Petitioner presents “compelling reasons.”

Supreme Court Rule 10. Petitioner claims that its

petition should be granted based on this Court’s Rule

10(a), which deals with conflicts between two circuit

courts of appeals. However, as explained in Section I

In the Fourth Circuit’s decision affirming Leckie, In re

Leckie Smokeless Coal Co., 99 F.3d 573, 578, fn 4 (4th Cir. 1996),

the court noted that the parties did not appeal the district

court’s determination that the transaction did not violate section

9722 of the Coal Act. Despite Petitioner’s contention regarding

the importance of this Court granting certiorari in employee

benefit cases, it denied the petition for certiorari of the Fourth

Circuit’s decision in Leckie. See United Mine Workers of America

1992 Ben. Plan v. Leckie Smokeless Coal Co., 520 U.S. 1118

(Mar. 17, 1997) (NO. 96-1117).

24

of this Brief, there is no circuit court split because the

cases may be distinguished on their facts.

This Court has long held that it “dofes] not grant

a certiorari to review evidence and discuss specific

facts,” United States v. Johnston, 268 U.S. 220, 227

(1925). Certiorari should be denied in cases involving

fact-specific issues. Estelle v. Jurek, 450 U.S. 1014,

1018 (1981) (Rehnquist, J., dissenting from denial of

cert.). “As a general practice the Court does not

review cases involving merely individualized circum-

stances.” Sentilles v. Inter-Caribbean Shipping Corp.,

361 U.S. 107, 113 (1959) (Frankfurter, J., dissenting).

See also Federal Trade Commission v. American

Tobacco Co., 274 U.S. &43, 544 (1927) (this Court

“adhere[s] to the usual rule of noninterference where

conclusions of Circuit Courts of Appeals depend on

appreciation of circumstances which admit of differ-

ent interpretations.”); Layne & Bowler Corp. v. West-

ern Well Works, 261 U.S. 387, 393 (1923) (this Court

should only “grant{ ] the writ of certiorari. . . in cases

involving principles the settlement of which is of

importance to the public, as distinguished from that

of the parties, and in cases where there is a real and

embarrassing conflict of opinion and authority be-

tween the Circuit Courts of Appeals.”).

Petitioner has not presented any compelling

reason to justify granting certiorari in this case.

Instead, it has largely argued that the Third Circuit's

decision was erroneous. Such an argument fails to

meet this Court’s standard for granting certiorari. See

25

N.L.R.B. v. Pittsburgh S.S. Co., 340 U.S. 498, 503

(1951) (“This is not the place to review a conflict of

evidence nor to reverse a Court of Appeals because

were we in its place we would find the record tilting

one way rather than the other... ”).

A. Unlike the Previous Rare Instances in

which this Court has Granted Certio-

rari for MPPAA Cases, this Case Does

Not Involve a Circuit Split

In support of its claim regarding the importance

of the Third Circuit’s decision, Petitioner notes the

large number of contributing employers to, and

participants covered by, multiemployer pension plans.

Petition 28-29. It also cites three cases involving

multiemployer plans in which this Court has granted

certiorari: Milwaukee Brewery Workers’ Pension Plan

v. Jos. Schlitz Brewing Co., 513 U.S. 414 (1995); Bay

Area Laundry & Dry Cleaning Pension Trust Fund v.

Ferbar Corp., 522 U.S. 192 (1997); and Concrete Pipe

& Prods. of California, Inc. v. Construction Laborers

Pension Trust for Southern California, 508 U.S. 602

(1997).

None of this provides a compelling reason justify-

ing this Court’s exercise of its limited resources on

this case. Although MPPAA was passed in 1980, and

despite the large number of participants in multiem-

ployer funds, Petitioner can only cite three cases in

the previous 27 years in which this Court has granted

certiorari. Moreover, this case is not at all like those

26

three cases, which involved explicit splits among

circuit courts. See Jos. Schlitz Brewing Co. v. Mil-

waukee Brewery Workers’ Pension Plan, 3 F.3d 994,

1004 (7th Cir. 1993); Bay Area Laundry, 522 U.S. at

200; and Concrete Pipe, 508 U.S. at 620."'

Additionally, circuit court cases involving section

4212(c) are rare. This Court has denied petitions for

certiorari in the few section 4212(c) cases in which it

has been requested, such as in Cuyamaca Meats, cert.

denied, 485 U.S. 1008 (April 18, 1988) (NO. 87-1440);

Santa Fe, cert. denied, 513 U.S. 987 (Nov. 7, 1994)

(NO. 94-449); and Sherwin-Williams, cert. denied, 526

U.S. 1017 (Mar. 22, 1999) (NO. 98-1133).

Petitioner also argues that the Third Circuit’s

opinion could have a large impact because, pursuant

to this Court’s decision in Bay Area Laundry, with-

drawal assessments may be made retroactively, and

that, based on the Third Circuit’s decision, other

funds may assess withdrawals going back to 1980.

Petition 30-31. This argument, if accepted on its face,

would mean that this Court would grant certiorari

almost automatically to cases involving withdrawal

liability because they all could have retroactive effect.

Instead, as noted previously, this Court has only

granted certiorari in three MPPAA cases. Finally, it is

also unlikely that there will be widespread applica-

tion of the Third Circuit’s decision, given the unusual

" Concrete Pipe can be further distinguished because it

involved constitutional challenges to provisions of MPPAA.

27

fact pattern in this case, as well as how rarely section

4212(c) is applied.

B. The Third Circuit’s Decision Will Not

Discourage Participation in Pension

Funds But Will Instead Strengthen

Funds

Petitioner claims that the Third Circuit’s decision

could make companies less likely to agree to contrib-

ute to multiemployer pension plans because it would

place limitations on their ability to withdraw from

funds. Petition 31-32. This ignores the fact that the

purpose of MPPAA, as stated in 29 U.S.C. § 1001a,

was to strengthen multiemployer pension funds.

Congress sought to do so by enacting a withdrawal

liability scheme which included a provision allowing

funds to disregard transactions whose principle

purpose is the evasion or avoidance of liability. Peti-

tioner is essentially arguing that allowing an em-

ployer to violate the terms of an act meant to prctect

pension funds would somehow strengthen those

funds.

Finally, Petitioner asserts that the Third Circuit’s

decision will dissuade companies from seeking infor-

mation regarding the plan or withdrawal liability

under 29 U.S.C. § 1401(e). Petition 32. However,

there is nothing in the Third Circuit’s decision which

indicates that merely requesting and receiving infor-

mation is enough to justify a finding that a principal

purpose of the transaction was to evade or avoid

28

withdrawal liability. Additionally, Petitioner’s argu-

ment ignores the fact that § 1401(e) is not designed to

provide information to employers solely to help them

decide whether to withdraw. See Brach’s Confections,

Inc. v. McDougall, 320 F. Supp. 2d 726, 733-734 (N.D.

Ill. 2004) (Section 1401(e) allows employers to access

information even after they have withdrawn); John J.

Nissen Baking Co. v. New England Teamsters &

Trucking Industry Pension Fund, 737 F. Supp. 679,

681-683 (D. Me. 1990) (Section 1401(e) is intended, in

part, to give withdrawing employers access to infor-

mation so that they can decide whether the assess-

ment was correct.).

This Court should therefore deny issuance of a

Writ of Certiorari for review of the Third Circuit’s

determination that Petitioner’s transaction violated

the plain language of section 4212(c), and, pursuant

to that statute, the transaction should be ignored.

+

29

CONCLUSION

For the foregoing reasons, Respondent respect-

fully submits that this Court should deny the Petition

for a Writ of Certiorari.

Respectfully submitted,

VINCENT P. SZELIGO

Counsel of Record

BRENDAN DELANEY

WICK, STREIFF, MEYER,

O’BOYLE & SZELIGO, P.C.

1450 Two Chatham Center

Pittsburgh, PA 15219

(412) 765-1600

Counsel for Respondent

Dated: January 10, 2008