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October 22, 1992


The opinion of the court was delivered by: RAYMOND J. DEARIE

 DEARIE, District Judge.

 In this action to confirm an arbitrator's decision concerning an employer's liability upon withdrawal from a multiemployer pension plan, the Court must consider the assessment of liability under section 4221 of the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended by the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"), 29 U.S.C. § 1401. The employer, petitioner Sigmund Cohn Corporation ("Sigmund Cohn"), had challenged its assessment of withdrawal liability imposed by the respondent Board of Trustees (the "Trustees") of respondent District No. 15 Machinists Pension Fund (the "Fund") through ERISA's dispute resolution procedures. The arbitrator ruled the assessment "clearly erroneous" and thus unenforceable and directed the Fund to recalculate the employer's liability.

 Sigmund Cohn seeks to confirm this award under ERISA § 4221, 29 U.S.C. § 1401, and requests costs, including reasonable attorney's fees, under ERISA section 4301(e), 29 U.S.C. § 1451(e).

 For the reasons discussed below, the Court concludes that the assessment was clearly erroneous and accordingly confirms the arbitrator's award in all respects. The Court denies Sigmund Cohn's application for costs and attorney's fees.


 The following facts are essentially undisputed. From 1962 until March 31, 1989, Sigmund Cohn was a contributing employer to the Fund, a multiemployer pension plan subject to the provisions of ERISA and the MPPAA. *fn1" The documents establishing the Fund, an agreement and declaration of trust (the "Trust Agreement") and a corresponding plan (the "Plan"), provide that they may be amended only "by an instrument in writing executed by the Trustees," Exh. C at 30 (Trust Agreement, Article XIV), *fn2" and "in accordance with the Agreement and Declaration of Trust establishing the pension Fund." Exh. C at 159 (Plan, Article IX). Notwithstanding these terms, the Trustees have operated the Fund in accordance with amendments written in 1980 but never executed by the Trustees, and in accordance with amendments formally executed after their effective dates, including an amendment effective July 1, 1972 only later executed on January 22, 1973 and one effective January 1, 1976 executed on July 21, 1978. *fn3"

  In 1980, the Trustees purported to amend the Plan by "adopting" *fn4" a hybrid method for calculating withdrawal liability which used the greater of the presumptive or direct methods. In late 1985, the Pension Benefit Guaranty Corporation (the "PBGC") published regulations that invalidated this "greater of" method. The Trustees recognized, as demonstrated in the minutes of their meetings held December 9, 1985 and March 28, 1986, that as a result of the PBGC invalidation, the statutory presumptive method would apply. See Exh. C at 64-66 and 161-78. The Trustees therefore resolved -- without formally amending the Plan or Trust Agreement -- "to adopt the presumptive method for all employers which withdraw on or after January 1, 1986." Id. at 66. Within weeks of the PBGC decision, the Trustees settled a class action suit brought by withdrawing employers, stipulating that

 as to all employers withdrawing from [the Fund] on or after January 1, 1986, the [Fund] shall compute and assess withdrawal liability under said "presumptive method."

 See Exh. C at 167 (Stipulation of Settlement, dated January 22, 1986).

 By late 1988, the Fund had $ 61 million in unfunded vested benefits to participants. In an effort to limit further unfunded liability, the Trustees, at a meeting on January 30, 1989, agreed to adopt the alternative "attributable" or "direct attribution" method for withdrawals occurring on or after March 1, 1989. The documents implementing this resolution were not prepared and executed until well after that effective date; the Trustees only signed the amendment of Article XII of the Plan on May 22, 1989 and the amendment of Article XV of the Trust Agreement on June 5, 1989. The minutes of the January 30th meeting were themselves never signed.

 In the course of negotiating a successor agreement with District 15, Sigmund Cohn received from the Fund Director a letter, dated February 2, 1989, that advised contributing employers:

 The Trustees have amended the District No. 15 Machinists Pension Fund Agreement and Pension Plan, effective March 1, 1989, to allocate Withdrawal Liability to employers who withdraw on or after that date pursuant to the "direct attribution method" set forth in [ERISA] at section 4211(c)(4) using the fraction described at ERISA section 4211(c)(4)(D)(i) and the modification permitted by [PBGC] Regulation section 2642.7

 Exh. C at 68. Sigmund Cohn, concerned that this new method would adversely affect its withdrawal liability -- and thus its negotiations with the union -- promptly sought from the Fund "an updated computation of the withdrawal liability costs under the Multiemployer Pension Plan Amendments Act (calculated in accordance with the amendments to the plan that will be in effect as of March 1, 1989) that would be incurred by Sigmund Cohn if it were to withdraw from the pension plan." Exh C at 210 (Letter from Richard Bemporad to the Fund, February 10, 1989).

 On February 28, 1989, the Fund Actuary sent the Director a report containing calculations of the employer's ...

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