RTI Restoration Technologies Inc v. International Painters Pension Fund - Withdrawal Liability

PRECEDENTIAL UNITED ST A TES COUR T OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 24-2874 _______________ R TI RESTORA TION TECHNOLOGIE S, INC.; INDUSTRIAL MAIN TENANCE INDUSTR IES, LLC v. INTERNA TIONAL P AINTERS AND A LLIED TRADE S INDUSTR Y PENSION FUND, Appellant _______________ On Appeal from the Un ited States District Cou rt for the District of New Jersey (D.C. No. 2:22- cv -023 64) District Judge: Hon. Ja mel K. Semper _______________ Argued: November 3, 202 5 _______________ BEFORE: PHIP PS, ROTH, and RENDE LL, Cir cuit Judges. (Filed: March 3, 2026)

2 Neil J. Gregorio, Esq. Brian A. Pepicelli, Esq. [ARGUED] T ucker Arensberg One PPG Place Suite 1500 Pittsburgh, P A 15222 Counsel for Appel lant Eric Magnelli, Esq. [ARGUED] Brach Eichler 101 Eisenhower Parkw ay Roseland, NJ 07068 Counsel for Appellee _______________ OPINION OF THE COUR T _______________ RENDELL, Cir cuit Ju dge. The International Painters and Allied T rades Industry Pension Fund (“Fund”), a multi- employer pension plan f und, sought to collect “withdrawal liability,” 29 U.S.C. § 1381(b)(1), from Ind ustrial Maintenance Industries LLC a nd R TI Restorati on T e chnologies, Inc. (“ Companies”) as successors to a defunct contributi ng employer under the Multiemployer Pension Plan Amendments Act of 1980 (“MPP A A”), 29 U.S.C. § 1001, et seq. The Compa nies responded by seeking a declaratory judgment in federal court that they were neither directly liable to the Fund nor liab le

3 under any successor theory. The C ompanies also urged that even if liable, the Fun d’ s failure to demand pa yment promptly resulted in prejudice such that the Fund’ s claim was barred by the doctrine of laches. Although the District Court concluded that genuine issues of material f act precluded su mmary judgment as to liability, it nevert heless granted judgme nt to the Companies because the Fund’ s failure to a ct “[a]s soon as practicabl e” in notifying the companie s of the withdrawal liab ility doomed its claim under the M P PA A, 29 U.S.C. § 1399(b)(1). This result, the District Court reas oned, was consistent with this Court ’ s opinion in Allied Painti ng and Decorating, Inc. v. Int’l Painters and Allied T rades Indus. Pension Fund, 1 07 F.4th 190 (3d Cir. 2024). The Fund asks us to v acate the Dist rict Court’ s order and urges that the issue of whether the Fund co uld state a cause of action given the Fun d’ s failure to comply wi th the MPP AA ’ s “a s soon as practicable ” requirement was waived. I t contends that, under the scheme of the MPP AA, the is sue should have been, and can only be, d etermined by an arbi trator. As the issue was never submitted to arbitration, th e Fund reasons, and th e time for seeking arbitr ation has passed, the C ompanies have waived the issue. T h e District Court, the Fund’ s ar gume nt continues, thus had no authority to resolve the case on that ground. W e dis agree and, therefore, we will affirm. I. Under the terms of a 1998 co llective bargaining agreement between Coating T echnologies, Inc. (“CTI”) and the International Union of Painters and Allied T rades Dist rict

4 Council 71 1 (“Union”), CTI was required to contribute to the Fund on behalf of its covered emp loyees. It made its contributions until it c losed in 2013. That y ear, the IUP A T Health and W elfare Funds (“IUP A T Funds”), sued CTI and its owners, including a company of f icer named Robert Ga gliano, to collect delinquent c ontributions. I n 2015, the case settled with the entry of a cons ent judgment. Gagliano was at va rious time s a business p artner, an employee, and part -o wner of the Compani es, which were founded in 2011 and 2013. So, i n connection with efforts to enforce the consent judgment against CT I, the Union and the IUP A T Funds had re peated contact with R TI a nd IMI “because of Robert Gagliano’ s involvement.” JA23. In 2015, th e consent judgment was satisfied. And in 2018, Gagliano d ied. Three years after Gagli ano’ s dea th, eight years after CTI went out of busine ss, and six years after the IUP A T Funds successfully collected delinquent contribution s from CTI, the Fund decided that C TI owed withdrawal liability under the MPP AA. In July 2021, the Fun d, for the firs t time, notified the Companies of the purported liabili ty. By l etter, the Fund asserted that it had “determined that [CTI] and [the Compan ies were] under common control . . . [and] had a complete withdrawal from the . . . Fund . . . during the 2013 Plan year.” JA133 (emphasis adde d). And “[b]ased on December 3 1, 2012 data. . . [the Companie s’] single sum sha re of unfunded vested benefit liability . . . is $ 800,445.” JA133 (emp hasis added). The Companies denied liability expla ining that “R TI/IMI has ne v er b een a signatory to a Co llective Bargaining Agreement with the. .. Union . . . and never agreed to make contributions to the Fu nd.” JA1 10. Moreover, “ neither R TI

5 nor IMI are under common control with C TI . . . . [and] for R TI/IMI to be liable f or CTI’ s . . . withdrawal . . . a control group relationship mus t exist.” JA1 10. Negotiations between the parties failed to resolve the dispute. R ather than seeking arbitration, the Compa nies filed suit in fe deral court. T he Companies sought a “declarator y judgment that [they]: (i) are not ‘e mployers,’. . . ; (ii) are not a ‘contri buting business’ or a busines s under ‘common control’ with third - party [CTI]; (iii) ar e not a successor to, alter ego of, joint or single employer with, and/or part of cont rolled group of entities with CTI; an d therefore; (iv) are not liable under ERISA f or the allege d withdrawal liabili ty of CTI.” JA37. The Fund answered the Complaint and filed a Counte rclaim seeking to collect the w ithdrawal liability. In its Counterclaim, the Fund alleged that the Companies not only owed CTI’ s withdrawal liability as its successors, but also owed “collatera l damages ” and interest associated with purportedly delin quent payments on th e principal amount. JA 57- 58. It f urther al leged that these damages and interest r esulted by operation of law because the Companies “did not de mand arbitration ag ainst the Fund under 29 U.S.C. § 1401 (a)(1). . . [before] the deadlin e for them to d o so expired on January 23, 2022.” JA58. Later, the parties sub mitted cross-motion s for summary judgment. The Companies argued that summary judgment was appropriate for two reasons. First, the Fun d failed to adduce evidence that the Companies were alter egos of, or successors to, CTI o r other wise employers as defi ned under ERISA. Second, even if the Fund could estab lish liability, its dilatoriness in notifying the Companies of the withdrawal

6 liability result ed in prejudice and, thu s, the Fund’ s claim was barred by laches. The Fund, by contrast, urged that evidence sh owed the Companies were liable under both an alter e go theory and a successor theory. 1 Laches, the Fund argued, did not apply because in choosing t o challenge the threshold question of whether the Companie s are “employers” un der the MPP AA rather than demanding arbitration, the Companies waived any argument as to th e timeliness o f the Fund ’s notice and demand for withdrawal liabilit y. Even if laches ap plied, the Fund urged, its d ilatoriness was exc usable because of t he complex procedure it chose to employ to determine withdrawal liability. See D.C. CM/ECF No. 50 at 16 -17 (describing the Fund’ s struggle to track “the large volume of employers,” and admission that it took at least two years from when “C TI appeared on [its] . . . inactive lis t” before “counsel . .. ultimately. . . recommended that the Fund issue an assessment” due to a “ backlog” in its system). Before the District Co urt ruled on th e cross -motions, however, we decide d Allied, 107 F.4th 1 90, which invol ved the same f und at issue in th is case and a similar pr ocedural issue. 2 In that case, we held that a pension fund can not collect on a claim for withdrawal liability unles s three requirements have been met: (1) an employer has with drawn fro m a plan; (2) the fund has notified the e mployer of its assessm ent of withdrawal 1 The Fund withdrew its claim of liability against t he Companies under a “co mmon control” the ory. JA15 n.2. 2 Indeed, the Fund was represented by the same firm and some of the same attorneys in Allied. Compare Allied, 107 F. 4 th at 192 (listing the Fund’ s counsel) with Fun d’ s Brief 29.

7 liability “as soon as practicable;” and (3) the employe r has defaulted on a payme nt “due a nd payable.” Id. at 19 7. As for the second of these prerequisites — the “as soon as practicable” element— we noted that while generally a “flexible” requirement, id., “dili gence is what the [MPP AA] requires,” id. at 193. Thus, we con cluded that where a pen sion fund failed to demand withdrawal liability from a p urported contributing employer within twe lve years of an employer ’ s withdrawal, the fund could not recover because it had not acted “as soon as practicable.” Id. T wo months after our decision in Allied, th e District Court granted judgment in favor of the Co mpanies. At the outset of its opi nion, th e District Court found g enuine issues of material fact pre cluded judgment on the question of whether the Companies were employers. 3 However, it neverthele ss granted summary judgment to the Compa nies, “not . . . based upon the doctrine of laches,” as the Compani es had urged in their brief, but “instea d based upon [a n independent ground, i.e.,] the Fund’ s failure to pro vide notice of its wit hdrawal liability assessment and dema nd payment fro m Plaintiffs ‘as soon as practicable’ fol lowing the employer ’ s withdrawal per 29 U.S.C. § 1399(b)(1).” JA22. In reaching this result, the District Court relied on our opinion i n Allied, 107 F.4th 190, 3 See JA18 (“record evi dence creates a disput e of material fact as to whether R TI/IMI and CTC may be treated as a ‘single integrated enterprise ’ ”); JA20 (“the Court determines that the evidentiary records be fore it raise issues of fact as to the identity of ownership between R TI/IMI and CTC,” under an alter ego theory); JA21 (“the Court determines that there are genuine issues of material fact that preclude granting a motion for summary judgment for either Plaintiffs or the Fund”).

8 and cited our observa tion that “the ‘as soon as pra cticable requirement . . . is an independent sta tutory req uirement ’ ” such that the failure to mee t that req uirement forecloses a pension fund’ s righ t to recover. JA23. The District Court iden tified two important undisputed facts, which supported its conclusion. I t wrote: W ithin the five - year pe riod after CT[I] went out of business and stoppe d remitting contrib utions to the Fund (2 013 - 2018), the following occurred: (1) in 2013, the IUP A T W el fare Fund initiated a lawsuit against CT[I] for unpaid welfare fund contributions . . .; and (2) from 2015 through 2017, the . . . Union . .. w[as] in repeated contact with R TI and IMI purportedly bec ause of Rob ert Gagliano’ s in volvement with the companies and CT[I]’ s still un paid delinquent contribution s. JA23. So, the District Court reasoned “[b]ase d upon the record evidence, as of 2013, the Fund had all the requisite informatio n available to be aware that CT[I] withdrew fro m the Fund and R TI/IMI were operati onal (with Gaglia no’ s in volvement as of 2015).” JA24. D espite this information, and in stark contrast with the IUP A T Funds ’ timely actions, the Fund failed to demand liability from the Companie s until 2021. This “8 - year delay in determinin g a withdrawal was not in compliance with the statutory frame wor k,” the District Court concluded. JA24. Indeed, “this 8 - year delay. . . ran directly contrary to the

9 Fund’ s statut ory obligation pursuant to 29 U. S.C. § 1399(b)(1) and the Allied decision. ” JA24. As the failure to act as soon as pract icable is an independent legal predicate to recovery, the Court further reasoned, it mattered not whether the C ompanies raised the issue in arbitration or r aised it in court as part of a declaratory judgment action, or whether th e court, as it did in this case, raised the issue sua sponte. JA22-23, 23 n.5. That is, while t he defense of laches is an affirmative defense su bject to waiver, whether the Fund acted as soon as pr acticable in demanding withdrawal liability is not. Drawing on Allied, the Court hel d that i t is a separate independent req uirement that the Fun d must prove, and thus the District Court rejec ted the Fund’ s “waiver” argument. The District Court also rejected the Fu nd’ s a lternative argument that even if the Companies had not waived its challenge to the timeliness of the demand, the eight- year delay in notifying the Companies of their withdrawal liability was excusable in the context of a laches defense. In its view, th e Fund failed to show ex cusable delay for tw o main reasons. First, the Fund had all the necessary information to identify CTI’ s withdra wal by no later than 20 13. Although the Fund urged it could not have known ab out the withdra wal liability before 2021, th e District Court noted t he inconsistency in the Fund’ s position. See, e.g., D.C. CM/E CF No. 50 at 16 (admitting that “CTI appeared on [the Fund’ s] five -year inactive list [by] 2019” but failing to act u ntil two years late r). In staking out thi s position, the C ourt o bserved, the Fund was attempting simultaneously to “downp lay its knowledge regarding CT[I]’ s withdrawal,” while relying o n that

10 knowledge to “impute. . . [liability for] w ithdrawal on [the Companies].” JA24. Second, the District Court reasoned that “the Allied decision . . . dealt wi th the same leng thy procedure” th at the Fund employed in this case to determine withdrawal liability, which was found not to justify the Fund’ s delay in demanding liability from the contributing employer. JA24. As the process at issue in Allied did not support a finding of excusable delay, the same process could not support a finding of excusable delay in this case. JA2 4. The Fund appealed. II. 4 The issue on appeal inv olves the statutory sche me of the MPP AA, p rimarily its requirement that disput es regarding the determination of the withdrawal li ability are subject to arbitration following notice to, and d emand by, the contributing employer. A. As the Supreme Court has explained, “ Congress enacted the MPP AA to protect the finan cial solve ncy of multiemployer pension plans.” Bay Ar e a Laundry and Dry Cleaning Pension T rust Fund v. Ferbar C orp., 522 U.S. 192, 196 (1997) (citing Milwaukee Brewery W o rkers’ Pension Plan 4 The District Court had jurisdiction under 29 U.S.C. § 1451(c) and 28 U.S.C. § 1331. This Court has jurisdiction under 28 U.S.C. § 1291.

11 v. Jos. Schlitz Br ewing Co., 513 U.S. 414, 416 - 17 (1995)). To that end, “ [t] he sta tute requires most employer s who withdraw from underfunded multiemploy er pension plans to pay ‘withdrawal liability.’ ” Id. (citing 29 U.S.C. § 1381(a)). “[A]n employer incurs withdrawal liabili ty when it effects a ‘complete withdrawal ’ from the plan. ” Id. Upon an employer ’ s withdrawal from a pensi on plan, the bur den of calculating the amoun t of withdrawal liabili ty falls on the plan’ s tr ustees. Id. at 197. Although the trust ees are afforded great latitude in doing so, the MPP AA requires “diligence.” Allied, 107 F.4th at 193. Thus, “as soon as p racticable” after an employer ’ s withdra wal, the plan’ s trustees must “set a n installment schedule a nd demand paym ent” from the former contributing employer. Bay Ar ea, 52 2 U.S. a t 197 (citing 29 U.S.C. § 1399(b)(1)). Upon “receipt of the trustees’ schedule and payment demand, the employe r may invoke a dispute resolution procedure that involves reconsideration by t he trustees and, ultimately, arbitrat ion.” Id. “Any dispu te between an employer and the pl an sponsor . .. concerning a determination made und er sections 1381 thro ugh 1399 . . . shall be resolved through arbitration.” 29 U.S.C. § 1401(a)(1) (emphasis added). The time to request arbitration u nder the statute varies, 5 but ma y be “jointly initia te[d] . . . wit hin the 180 -day period after the date of the plan spons or ’ s [notice and] demand under section 1399(b)(1).” 29 U.S.C. § 1 401(a)(1). “If no party requests arbitrati on, the installme nts become ‘due and 5 See, e.g., 29 U.S.C. § 1401(a)(1) (providi ng different times to demand arbitration b ased on whether the employer first seeks review by the de manding fund and whether the fund provides a response).

12 owing.’” Bay Ar ea, 522 U.S. at 19 7. “Shou ld the employer fail to pay . . . the plan may . . . . sue to collect the unpaid de bt,” id., “in a State or Feder al court,” 29 U.S.C. § 1 401(b)(1). W e have observed that the MPP AA expresses a “ clear preference for self - regulation through arb itration” while providing “for judici al review in the event that arbitration failed to resolve the controversy.” Republi c Indus., Inc. v. Cent. Pa. T eamsters P ension Fund, 69 3 F.2d 290, 294 - 95 (3d Cir. 198 2). But we hav e “held that under [t he] MPP AA[,] there is no per se exhaustio n requirement under which the court lacks jurisdiction to hear cases that have not f irst been before an arbitrator.” Dorn ’ s T ransp., Inc. v. T eamsters Pension Fund, 787 F.2d 897, 90 3 (3d Cir. 1986) (citing Re public Indus., 693 F.2d at 295 - 96). Thus, a s discussed in greater detail below, we have recognized that ar bitration may be “bypassed” in t he “rare case in which th ere [i]s no need for the development of a factual record. ” Dorn’ s, 787 F.2d at 903. And, presumably, the factual record that an arbitrator wo uld consider would cen ter on the “determination” made regarding withdr awal liability. B. T he Fund frames the issue on appeal as “[w]h ether the District Court erred in granting su mmary judg ment to the . . . Companies based on a defense that is subjec t to arbitration . . . and that the . . . Companies waived by failing t o first pursue [it] in that forum.” Fund’ s Br. 4. T o support its position that the District Court erred, the Fund relies on a series of cases in other circuits where a failure by an employ er to demand arbitration upon notification of a pension plan’ s demand for withdrawal liability was deeme d a waiver of any challenge as to th e

13 timeliness of the noti ce. But there are at least three problems with the Fund’ s argument. First, the Fun d presumes that any issue regar ding the timeliness of a fund’ s notice and demand is a “defense” subject to “waiver.” The Fund seems to conflate the timeliness requirement with an eq uitable defense of la ches. But it is more than that after Allied. It is an independent statutor y requirement. Second, the out-of- cir cuit cases on which the Fund relies are distinguishab le. And third, the Fund do es not urge, nor could it, that the District Court lacked t he authority to ad dress the issue of the timeliness of its noti ce and demand u nder our existing precedent. 6 Instead, the Fund only vaguely claims that the District Court “erred” in address ing the “as soon as practicable” requir ement, which it contends c an only be raised in arbitration. Fund’ s Br. 4. But our pr ecedent supports th e District Court as the appropr iate tribunal to consider the Companies’ compla int as well as its rulin g. i. 6 T he Fund concedes the District Court properly had jurisdiction by seeking to revers e the Di strict Court’ s order on the “as soon as practicable” ground but other wise not seeking to disturb the District Court’ s conclusion that genuine issues of material fact prohibit judgment on whether th e Companies are employers.

14 W e first reject t he gloss that the Fund has placed on the issue presented in this case to the exte nt that it is premised on the idea that the “as soon as practicabl e” requirement is an affirmative “defense” subject to “wai ver.” W e have never so held, and, indeed, our precedent und ermines the Fund’ s position. In Allied, we af firme d the district cour t’ s or der vacating an award in favor of the Fund based on the “as soon as practicable” requirement despite the iss ue never having been raised in the procee dings belo w. 107 F.4th at 195. W e will discuss Allied more fully below, but we note that we r ejected the notion that the e mployer needed to sh ow prejudice t o succeed based on delay. W e sua sponte addres sed whether the Fund acted “as soon as practicable” u nder § 1399(b)(1) because it “is an independent s tatutory requirement.” Id. at 199. Ultimately, we instructed that compliance with the requirement is a sine qua non of a successful claim for withdrawal liability be cause it is “one of the elements of the MPP AA. ” Id. at 198. That the provision of notice and demand “as soon as practicable ” is an essential element of the claim fo r liability, we reasoned, flowed naturally from the Supreme Court’ s teachi ng in Bay Ar ea regarding the statu t e of limitations. Id. at 196. There, the Supreme Court explained that the statute of limitations for a claim of withdrawal li ability begins to run “no t when the employer withdraws from the fund . . . but when the employer defaults on an installme nt ‘due and payable’ following the fund’ s notice a nd demand.” Id. (emphasis added). This is because limitati ons periods begin whe n “the plaintiff has a ‘ complete and present c ause of action.’” Bay A re a, 5 22 U.S. at 19 5 (quoting Rawli ngs v. Ray, 312 U.S. 96,

15 98 (1941)) (emphase s added). And o nly when the fund has provided notice and d emand “as soon as pr acticable,” does claim for withdrawal li ability accrue. T he Fund seizes upon dicta in Bay A re a to support a sweeping proposition t hat the question of whether an employer has complied with the “ as soon as practicable” requirement c an be raised only in the form of an affirmative laches defense in arbitration. The lan guage — namely, wher e “an employer believes the trustees ha ve failed to comply with their ‘as soo n as practicable’ re sponsibility, the employer may assert that violation as a laches objection at an arbitration” — is persuasive, not mandatory. Bay Ar ea, 522 U.S. at 205. This statement is meant to emphasize the notion that fund tr ustee s should be diligent in making a demand o n the employer. Moreover, we have already written about this passage from Bay Ar ea and have e xplicitly recognized that it i s “dic ta.” Allied, 107 F.4th at 197. W e have previously ex plained that “ Bay Ar ea resolved only the issue of how t o read the time li mitation on filing a su it under the MPP AA.” Id. (emphasis added). And “ [t]he reference to laches comes in that conte xt.” Id. (emphasis added). The Supreme Court discussed a laches defense as “ a potential defense to a suit broug ht within the s ix - year statute of limitations from when the employer def aults on a payment.” Id. (emphasis added). The Supreme Court did not say, co ntrary to the Fund’ s ur ging, that the issue of whether a fund has complied with the “as soon as practicable” requirement can only be raised in connection with a laches defense at arbitration.

16 Indeed, w e have criticized the view, taken by some out- of-circuit district court s, that “laches is the r e quir ed vehicle to challenge timeliness of the withdraw al - liability notice and demand.” Allied, 107 F.4th at 197 n.15 (emphasis i n the original) (rejecting the idea that laches is the only mea ns of addressing timeliness, which is the view taken by the U. S District Courts for the Middle District of T ennessee and the Eastern District of Ne w Y ork in P ACE Indu s. Union- Mgmt. Pension Fund v. T r oy Rubber Engraving Co., 805 F. Supp. 2d 451, 464 (M.D. T enn. 2011), and Pavers & Rd. Builde rs Dist. Council Pen sion Fund by Montelle v. Nico Asphalt Paving, Inc., 248 F. Supp. 3d 374, 380 (E. D.N.Y. 201 7)). At bottom, l aches is one veh icle for challen ging timelines s, but it is not the exclusive means by which alleged delay may be addressed, no r is it the lens through which the “a s soon as practicable ” requirement should be viewed. ii. The Fund cites the Eighth Circ uit’ s opinion in V augh n v. Sexton, 975 F.2d 498 (8th Cir. 1992), which predated the Supreme Court’ s decision in Bay Ar ea, to support its view that compliance with the “ as soon as practi cable” requirement of the MPP AA is a waivable defense. But V aughn does not advance the Fund’ s cause insofar as the Eighth Circuit was considering laches as a defense, nor did it mention, let alone consider, the “as soon as practicable” require ment as such. There, an e mployer withdrew fro m a pension fund in 1984. V aughn, 975 F.2d at 500. Four years later, the fund notified the employer of its outstand ing withdrawal liabilit y. Id. The following year, the fund sued the employer in federal court seeking to collect on the withdra wal liability. Id. The district court conclude d that “because the [empl oyer] had never

17 requested arbitration, they had waived their right to assert laches as a defense to payment.” Id. a t 501 (emphasis ad ded). On appeal, the employer argued that “the question of unreasonable delay is o ne requiring statutory interpretatio n and is therefore not suitabl e for resolution by a n arbitrator r ather than a court.” Id. The fund, howe ver, countered that “the essence of the la ches claim — that the trustees did not notify the defendants ‘as soo n as practicable,’. . . afte r the withdrawal . .. is a factual dispute and therefore withi n the purview of matters amenable to resolution by an arb itrator.” Id. (emphasis added). The Eighth Circuit agreed with the fund. It wr ote: “W e believe that the questio n of whether the pensi on plan trustees’ delay was unreasonabl e is a factual one that could have been raised by the defendant s at the time they could have requested arbitration. W e hold, accordingly, that by their failure to request arbitration th ey have waived it as a defense t o payment.” Id. (emphasis added). Thus, the issue before the Eighth Circuit was w hether the equitabl e defense of laches i s waivable, not whether the fund complie d with the “as soon a s practicable” requireme nt. T o the extent that V aughn can be read to support the Fund’ s position that t he “as soon as practicable” requirement can be waived, it c onflicts with the Supreme Court’ s teaching in Bay Ar ea that the Fund’ s claim does not even accrue until timely notice and demand has been made. Beyond V aughn, the Fund cites a stri ng of out - of-circuit cases to support its argument that compliance with the “as soon as practicable” require ment may o nly be rais ed in the form of a defense at arbitr ation, but these cases a re also distinguis hable.

18 The Fund, for e xample, urges that the Court of Appeals for the District of Columbia Ci rcuit in Joyce v. Clyde Sandoz Masonry, 871 F.2d 1 119, 1 126 - 27 (D.C. Cir. 1989), and the First Circuit in Gir oux Bros. T ransp. v. New England T eamsters & T ruck ing Indus. Pension Fund, 73 F.3d 1, 3 - 4 (1st Cir. 1 996), have “provid[ed] that t his [as soon a s practicable] defen se is clearly subject to arbitration in the first insta nce.” Fund’ s Br. 27. The Fund mischaracterizes both opini ons. Joyce involved “a single i ssue of statutor y interpretation: What acts or omissions trigg er . . . [the] time bar . . . applied t o efforts to collect withdrawal liability?” 871 F.2d at 1 122. It did not involve the question of whether t he “as soon as practicable” requirement is a defense nor whether a pension plan’ s compliance with the requi rement can be determined only thro ugh arbitration. And while the cour t ultimately remanded the case to be considered by an arbitrator, it did not rule that ar bitration was required in all instances. I nstead, it echoed our o wn obs ervation in Repu blic Ind us., 693 F.2d at 294 - 95, that the MPP AA “favors arbitration” and that disputes “should be conducted initi ally before an arbitrator ” when “ practicable,” Joyce, 871 F.2d at 11 2 7 (emphasis added). Gir oux, like V aughn, predates the Suprem e Court’ s opinion in Bay Ar ea, and is factually distin guishable in so many ways that it deserves little discu ssion. An arbitrator had already entered an award against the emplo yer. Gir ou x, 73 F.3d. at 2. Given the posture of the case, the court def erred judgment on the employer ’ s alternative argument regarding the timeliness of the fun d’ s notice and demand until such time as there was a direct appeal from the arbit rator ’ s award. Id. at 4. In so deciding, the F irst Circuit noted that the MPP AA ’ s “arbitration provision is an exhaustion of administrat ive

19 remedies requirement, rather than a jur isdictional bar.” Id. at 4. As for the remaining out -of- circuit district c ourt cases cited by the Fund in a footnote, see Fund’ s Br. 27 n.4, each is distinguishable in t hat the courts in those cas es viewed the “as soon as practicable” requirement as essentiall y merged with or “subsumed by [the] lac h es defe nse,” Pavers, 248 F. Supp. 3d at 380. But as discussed in connection with Bay Ar ea above, we have already parte d ways with this view. Allied, F.4th at 197 n.15. But reliance on V aughn, and the cases cited by the Fund, is even more problematic because in t hose cases, unlike here, it was essentially undisputed that the business organizations from which the pensio n fund demanded with drawal liability were “employers” who, presented with notice and demand for payment under the M PP AA, were required to seek arbitration to challenge the “determination.” V aughn, 975 F.2d at 500 (“the pension plan trus tees demanded paym ent . . . from [the stockholders of the co ntributing emplo yer]”). But it can n ot and does not control the situation wh ere the de mand is made of entities that contend they are not liable as an employer. This distinction is key. W e have clearly held that cases in whi ch a party’ s status is unclear may first be submitted to a court to determine the employer ’ s status. Se e, e.g., Flying T iger L ine v. T eamsters Pension T r. Fund of Phila., 830 F.2d 1241, 1251 (3d Cir. 1987) (citing Banne r Indus., Inc. v. Cent. States, Se. & S w. Ar eas Pension Fund, 657 F. Supp. 875, 882 (N.D. Ill. 1987)); see also IUE AFL - CIO Pen sion Fund v. Barker & W illiamson, Inc., 788 F.2d 1 18, 127 (3d Cir. 1986) (noting that “[i]f [a] corporation

20 legitimately believes its status as a control led group member is doubtful, it could bring a declaratory judgmen t action to have that question resolved by a federal court[, which could] enjoin the running of the s tatutory per iod for seeking revie w and arbitration”). 7 So, if all the Compani es had to support their position was the fact that other cases were distin guishable because they focused on laches and involved emp loyers wh o are required to opt for arbitration, ou r path to affirmance would be more inferential than clear cut. But o ur recent o pinion in Allied takes the notice and demand “as soon as practicable” requirement to a new level that dictates that the District Cour t here got it right. A closer exa mination o f Allied is in order. Allied, a painting co mpany o wned by Ro bert Smith, “signed an agreeme nt” with a union req uiring Allied to contribute pension ben efits payments to the sa me Fund at iss ue in this case. Allie d, 107 F.4th at 193. Several years later, Allied went out of business, but submitted reports to the union showing that it had not used union labor and, thus, had no obligation to contribute to the Fund. Id. Smith, however, went on to establish a new company called Allied Constructi on Management. Id. 7 The Dissent assumes without any reasoning that the dispu te between the Fund and the Compan ies was a dispute “concerning a determination made” und er the relevant sections. But it was not. The dispute involved the Companies ’ status as an employer and clearly, under Flying T iger, that type of dispute can be br ought in court.

21 Under the MPP AA, w here a former emp loyer resum es work after the expiration of an obli gation to contribute to a plan, the resumption of work may result in with drawal liability. 29 U.S.C. § 1 383(b)(2). This feat ure of the MPP AA exists t o “eliminate the incentiv e to pull out of a plan,” which could destabilize the fund and jeopardize the payment of benefits to the plan participants. SUPERV ALU, Inc. v. Bd. of T rs. of S w. Pa. and W. Md. Ar ea T eamsters and Emps. Pension Fund, 5 00 F.3d 334, 336 (3d Cir. 2007)). So, the burden fell to the Fun d to determine whether “Allied’ s return to painting pote ntially triggered withdrawal li ability.” Al lied, 107 F.4th at 194. T welve years after Allied made its last pay ment to the Fund, the Fund delivered to Allied a notice and demand for payment of withdra wal liabili ty. Id. The Fund ’ s delay in issuing this notice and deman d was due t o its failure to “rigorously track, muc h less assess, employer withdra wals,” which resulted in “a backlog of hun dreds of cases.” Id. Eve n in the face of this backlog, “invest igations moved slowly,” so that “whil e Allied’ s potential liability came to the Fund’ s attention in 2011,” the Fund did not provide its notice and demand until six years later. Id. In response to the Fu nd’ s demand, Allied requested review and demanded arbitration under 29 U.S. C. § 1401(a)(1). Before th e arbitrator, Allied raise d an af firm ative defense of laches urging that “by the ti me the Fund notified Allied of its withdrawal liability . . . Allied had no records . . . having purged its records . . . . [a]nd .. . anyo ne with personal knowledge about the matter wa s no longer employed or . . . identifiable.” Id. But t he arbitrator rejected this laches defense concluding that while the Fund fa iled to “act ‘as soon as

22 practicable’ in issuing a notice and demand to Allied . . . . Allied had failed to establish sever e or material prej udice” resulting from that delay. Id. at 194 -95. “On appeal, the District Court found that Allied was prejudiced by the delay and vacated the A ward.” Id. at 195. The Fund appealed and we affirmed the vacatur of the award, “though on [a] different g round[],” raised sua sponte on appeal. W e af firmed on the ind ependent ground that “the Fund did not act ‘as soon as practicable’ whe n it provided notice of Allied’ s wit hdrawal liability and de manded payment twelve years after Allied’ s obligation to contri bute to the Fund ceased.” Id. a t 196. This fact “ends th [e] matter.” Id. To reach this conclusion, we began with “the usu al task of giving effect to Congress’ s directive by looki ng first to the te xt of the law.” Id. at 197. W e observed that under the text of the MPP AA, “for a fund to assert a with drawal - liability clai m,” it must take three steps: Step One: The employer must withdra w from the plan. Step T wo: “As soon as practicable” aft er withdrawal, the fund must A) provid e notice to the employer of its withdrawal-liabili ty assessment and B) de mand payment from t he employer. Step Three: The emp loyer must default on a payment “due and paya ble.” Id. (citations omitted). “U ntil [each] step is taken, the employer has not ‘violated an obligati on owed the [fund] under

23 the [MPP AA],’ and the fund’ s ‘interest in recei ving withdrawal liability does not ripen into a cause of actio n.’” Id. As for the notice and demand re quirement in partic ular, we noted that “[n]either the statute nor Bay Area requires employers to pro ve prejudice . . . . [because] [i]f a fund do es not issue its demand ‘as soon as pract icable,’ then it has not satisfied one of the elements of the MP P A A.” Id. at 197 - 98 (emphasis ad ded). That the statute required no prejudice be prove n, we continued, disting uished the “as soon as practicabl e” requirement fr om “a laches defense.” Id. at 198. The “prompt de livery of notice and payment demand [i]s a predicate to suing.” Id. And the Fund’ s failu re to deliver notice and dem and promptly was fatal, as a matter of law, to its suit regardless of whether Allied proved that the delay h ad prejudiced it. Given the way we hav e emphatically stated that timel y notice and d emand is o ne of three eleme nts necessary to e ven give rise to a cause of action for withdrawal liability, query whether it was intend ed to be an issue for arbitration. The MPP AA states that a “determination made under section s 1381 through 1399 . . . shal l be resolved through arbitration. ” 29 U.S.C. § 1401(a)(1). Sections 1381 through 1399 repeatedly use the word “determine” and “determination” in reference to the amount of liabi lity and how and when the liability is to be paid. 8 T he determinations wit h which § 1 401 is concerne d 8 See, e.g., 29 U.S.C. § 1381(b) (referring to the “amo unt determined . . . to be th e allocable amount of unfunded vested benefits”); 29 U.S. C. § 1382 (requ iring the “p lan sponsor” to “determine the a mount of the e mployer ’ s withdrawal liability”); 29 U.S.C. § 1391 (referring to the “[d]etermination of amount of unfun ded vested benefits,” and “[f]actors

24 generally go to these computational facts. And we acknowledged as much in Republic Indus., where we discussed the limited authority of arbitrators under the MPP AA t o resolve discrete issues such as the applicability of statutory exemptions under the statute and “ the amount of . . . withdrawal liability now due and paya ble.” 693 F.2d at 297. Among other thi ngs arbitrators had no authority to resolve, we conc luded, are facial constitutional challeng e s to th e MPP AA. Id.; see also In r e Centric Corp., 901 F.2d 1514, 1518 (quoting Carl Colteryahn Dairy v. W. Pa. T eamsters & Emp.’ s Pension Fund, 847 F.2d 1 13, 1 18 (3d Cir. 198 8)) (observing that matters su bject to arbitration are “those which go to the merit s of the liability assessment itself” such as “how and when wit hdrawal liability is to be assessed”) (inte rnal quotation mark s omitted). U nder the plain langu age of the statute, the re is no “determination” to be made by the fund or any other party as to the timeliness of a fund’ s notice and demand. Instead, what is required by the statute is t hat the notice and demand be timely for a cla im for withdrawal liability t o acc rue. So, we conclude that although the question of whe ther a fund has complied with its obligation to act “as soon as practicable” may be a threshold questi on that could be addressed by an arbitrator in the course of resolving dispu tes about “determinations made” as to the withdrawal liability under § 1401(a)(1), it is not itself a “determinat ion” r equir ed to be arbi trated. A s we made clear in A llied, timely notice and demand is an element of a with drawal liability claim, so the existence of this element ma y be decided by a court sua sponte and determining computat ion of amount of unfunded vest ed benefits”).

25 without first subm itting the matter to an arbitrator, especially where a decision is straightforward. That the court may render a decision as to timeliness without the que stion being fir st presented to an arbitrator is further consi stent with our precedent, which has recognized that arb itration is not necessarily required for all issues that arise in connection with withdrawal liability un der the MPP AA. Q uite apart from the Dissenting Opinion’ s characterization that we have manufactured a “dichotomy” between “predicate” and “ordinary” elements to reach the result in this case, the result is dictated by the Supreme Cou rt’ s decision in Bay Area and our own precedent in Allied. We merely reason, consi stent with this precedent, that the “as soon as practicable” require ment must be met before the Fund eve n has a claim against the employer. A s we recognized i n Allied, unless and until each e lement of the withdrawal liability claim has been met, “the fu nd’ s ‘interest in recei ving withdrawal liability does n ot ripen into a cause of acti on.” Allied, 10 7 F.4th at 197 (emphasis added). Am ong these “elements,” we expressly held, is the “prompt de livery of notice and pa yment demand,” which “[i]s a predicate to suin g.” Id. at 198 (emphasis a dded). It makes little sense, a s the Dissenting Opinion insists, to requ ire that a claim that is l egally unripe be submitted to an arbitrator especially given our recognition i n Republic Indus. and Dorn’ s that the MPP AA ’ s arbitration requirement is not jur isdictional, 787 F.2d at 903. Moreover, the Dissenting Opinion fails to mention let al one grapple with either Bay Ar ea or Allie d, which compel our co nclusion.

26 iii. As we have expla ined, the MPP AA e xpresses a “ clear preference for self - reg ulation through arbitration.” Republic Indus., 693 F.2d at 294-95. An d while in the mine run of cas es this clear preference will prevail, we have recognized some exceptions. In Dorn’ s, for example, we held that a district court may exercise its sound discre tion to “bypas s arbitration,” in “rare cases” that would not benefit from arbitration. 787 F.2d at 903. Citing Republi c Indus., we identified “several relevant considerations,” in dete rmining whether a cour t could exercise its discretion in bypassi ng arbitration: whether the issue [i]s one in which an arbi trator would have special exp ertise; whether there was a reasonable possibil ity that arbitration would moot further proceeding s and thus serve the goals of judicial economy; a nd whether arbitration wo uld help develop a fuller factual record that wo uld assist the district court. Id. (citing Re public Indus., 693 F.2d at 295 - 96). Since we fir st decided Dorn’ s, we have made sure to highlight our observation there that bypassin g arbitration should be permitted only in the “rare case.” See Colter yahn’ s, 847 F.2d 1 13, 123 n.17 (ackn owledging that Dorn’ s limited b ypassing arbitration in the “rare case whe re there woul d be no need for factual development”) (citation and i nternal quotation marks omitted) (emphasis in t he original). But the se rare cases would not be those in which there w as no dispute as to employer status. The “rare cases” exception becomes significantly

27 broader where the issu e of employer s tatus, as in Ba rker & W illiamso n, is thrown i nto the mix. And even if we felt constrained by the “rare case” admonition, we conclude that th is case f alls w ithin the narrow category of “rare cases” we identifie d in Dorn’ s that need not first proceed through ar bitration. 9 First, resolution of t he timeliness questi on on the record before the District Court did not require the special expertise of an arbitrator. As t he District Court found, and the Fund doe s not dispute on a ppeal, “ [b]ased upon the record evidenc e, as of 2013, the Fund had all the requisite infor mation available to be aware” of the purported withdrawal liability. J A24. The District Court also foun d, and the Fund again does not dispute, that the “lengthy proc edure” in Allied, which we recognize d failed to establish exc usable delay by the Fund, is the same procedure at issue in this case. The Fund to ok eight years to act after the last payment by Gagliano’ s company. Moreover, Gagliano, who likely would have been a key witness in an y proceedings to resolve the merits of the withdrawal liability claim, died during this time. This serves to highlight the obvious dilatoriness o f the Fund’ s delivery of notice and demand. 9 The Dissenting Opinio n also protests that we have resurrected and expanded Dorn’ s, which it contends had been relegated to the “dustbin” of the ye ar “1986.” But beyo nd quibbling with our view of Dorn’ s, it h as ignored precedent that, while on the one hand has acknow ledged the “rarity” of its applicability, on the other hand has never overruled i t. Thus, Dorn’ s remains good law.

28 W e also hasten to note that in neither its briefs nor at argument did the Fund urge that the District Court’ s findi ng that the Fund did not act as soon as practicable in i ssuing its notice and demand was clearly erroneous. That it wou ld not so urge on appeal is unsurprising given the Fund’ s effort to justify its lengthy delay in brie fing before the District Court fell sho rt of any reasonable mark. See D.C. CM/E CF No. 50 at 15 (arguing that the Fund’ s delay was excusable in the context of a laches defense). By its own admission, the Fund’ s procedure to determine withdrawal liability, ineffective as it was, identified Gagliano’ s c ompany as having withdrawn from t he Fund by no later than 2019. See D.C. CM/ECF No. 50 at 1 6 (admitting that “CTI appeared on [the Fund’ s] five -year inactive list [by] 2019”). And yet, the Fund did not issue its notice and demand to the Companies until 20 21. No special expertise was require d for the District Court to determine what was plain from the undisputed record — the Fun d’ s a ctions wer e not timely. Second, the Compan ies had properly placed the question of their status as employe rs before the District Court such that the court would ulti mately have had to render a decision on that issue. Thus, the Di strict Court’ s decision to resolve the case on the timeline ss ground wit hout expending additional resources on the employer stat us issue served, rather than hindered, the goal of judicial economy. W ere t he District Court to have decided otherwise, it w ould have been forced to impanel a jury to decide the disp uted facts relating to the Companies’ status under the MPP AA only to conclude after a lengthy trial that, as a matter of law, the Fund’ s claim failed because it did not provide its notice and demand to the Companies in compliance with § 1399(b)(1). The Dist rict

29 Court was right to sta unch the flow of further resources t o this case. Third, there would have been no benefit to insisting that the parties first arbitr ate the matter to develop the factual record. Again, as the case was properly presented to the District Court to deter mine the Companie s’ employer status, the parties were bound to, and did in fact, co nduct discovery. JA10. Thus, the parties had an opportunity to develop t he facts, and the District Court was pre sented with a fulsome record upon which it based its decision. An arbitra tor would not have had a better opportuni ty to de velop the record than the District Court had here. T o insist, as the F und insists, that a rbitration was required on this record is contrary not only to the law, but contrary as well to the essential purpose of a rbitration in the statutory scheme in the first place — to promote the speedy and effective resolution of disputes. T his case required l ittle by way of factual devel opment a s all that w as required was straightforward applic ation of Allied. Fin ally, althoug h t he Fund protests that permitting the bypassin g of arbitration in this case would sanction the “unfettered di scretion of the district court,” Reply Br. 5, to take up issues that shoul d normally pass through arbitration under § 1401(a)(1), the circumstances under which a court would approve of bypassing arbitration th at was otherwise req uired by statute are exceedingly rare. III. For these reasons, we will affirm the District Court’ s order.

1 RTI Restoration Techn ologies, Inc. v. Inte rnational Painters & Allied Trades Indus tr y Pension Fund, No. 2 4-2874 PHIPPS, Circuit Judge, dissenting. There are plenty of reasons to conclude, as the Majority Opinion does, that the Fund did not act “as so on as practicable” in attempting to c ollect withdrawal liability from the Companies. 29 U.S.C. § 1399(b)(1). But clarity as to the resolution of that issu e does not mean that the question is properly decided by a federal court inst ead of by an arbitrator. And from the text of the Multie mployer Pension Plan Amendments Act of 1980, th at issue s hould be initi ally decided in arbitration – not in court. For that r eason, as elaborated below, I re spectfully dissent. The MPPA A has an unequivocal arbitratio n requirement for disputes between employers an d plan sponsors concer ning a range of determinatio ns: Any dispute between a n employer and th e plan sponsor of a multiem ployer plan concern ing a determination made under sections 13 81 through 1399 of this title s hall be re solved through arbitration. Id. § 140 1(a)(1). The requirement that a pla n sponsor notify an employer of its liability “as so on as practicable after a n employer’s complete or partial wit hdrawal” from a pla n is codified in section 1399 of Title 29 – one of the sections within the statutory range subject to arbitration. Se e id. § 1399(b)(1). Thus, any determinatio n concerning the as -soo n- as -practicable requirement is subject t o the MPPAA’s arbitration require ment and should not be addressed in the first instance in federal court. The Majority Opinion reaches a contrary result, and neither of its rationales hold up.

2 First, the Majority Opinion announc es that there are two tiers of elements for an employer’s claim against a pla n sponsor under the MPPAA. There are, on th e one h and, the new ly conceived ‘predicate elements,’ whi ch are not subject to arbitration under the MPPAA, and, on the other hand, there are the remaining, ordinary elements, which are, according to the Majority Opinion, the determinations subject to ar bitration under the MPPAA. 1 With that dichotom y in place, the Majority Opinion then deems the as -so on- as -practicable determination to be one of the newly anno unced ‘predicate elements’ outside of the MPPAA’s arbitration requirement. The novelty of this approach buys no thing because the text o f the MPPAA places th e as -soon- as - practicable determination within the statutory ran ge subject to arb itration – regardless o f whether it can be labeled as a predicate eleme nt or an ordinary element. Second, and per haps based on a sense that th e predicate- element invention is on shaky foot ing, the Majority Opinion expands the atextual, rare- case exception announced i n the Dorn’s decisio n from 1986. See Dorn’s Transp., Inc. v. Teamsters Pension Tr. Fund of Phila. & Vicinity, 787 F.2d 897, 903 (3d Cir. 1986). U ntil today, Dor n’s was in a dustbin. On three occasions, thi s Court considered the Dorn’s rare- case exception, declined to apply it, and limit ed it to its facts. See Flying Tiger Line v. Teamste rs Pension Tr. Fund of Phila., 830 F.2d 1241, 125 4 (3d Cir. 1987) (distingu ishing Dorn’s as a “rare case”); Carl Colteryahn Dairy, Inc. v. W. Pa. Teamsters & Emps. Pension Fund, 847 F.2d 113, 123 n. 17 (3d Cir. 1988) (construing Flying Ti ger to “limit[] Dorn’s to its particular facts”); Crown Cork & Seal Co. v. Cent. States Se. & Sw. Areas 1 To be sure, precedent allows a party to challenge the applicability of the MP PAA’s arbitration man date in co urt, s ee Flying Tiger Line v. Teamsters Pension Tr. Fund of Phila., 830 F.2d 1241, 1251 (3d Cir. 1 987), but once a disp ute is within that mandate, every elemen t of an MPPAA claim should be subject to arbitratio n, see 29 U.S.C. § 1401(a)(1).

3 Pension Fund, 881 F.2d 11, 18 n.17 (3d Cir. 1 989) (“[C]ircuit precedent permitting arbitration to be bypasse d —particularly, Dorn’s Transportation, 787 F.2d 897 — has be en limited to its particular facts.”). Aft er the last of those d ecisions in 1989, this Court has not r elied on the Dorn’s rare -case exception. Resurrecting and expanding Do rn’s rare - case exception contravenes the line of precedent that has limited Dorn’s to i ts facts. In sum, it is not necessary to manufacture a predicate - element approach or to revive and enlarge a long -abandoned atextual exception because the ans wer to the questio n presented here can be found in statutory te xt: as -soon- as - practicable determinations are subj ect to mandatory arbitration. See 29 U.S.C. § 1401(a)(1); see also id. § 1399(b)(1).