UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 23-1537 _____________

ALLIED PAINTING & DECORATING, INC.

v.

INTERNATIONAL PAINTERS AND ALLIED TRADES INDUSTRY PENSION FUND, Appellant _____________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 3-21-cv-13310) District Judge: Honorable Peter G. Sheridan _____________

Argued January 18, 2024 Before: HARDIMAN, MATEY, and PHIPPS, Circuit Judges.

(Filed: July 11, 2024) _____________ Neil J. Gregorio Jill D. Helbling Richard B. Tucker, III [ARGUED] Tucker Arensberg One PPG Place Suite 1500 Pittsburgh, PA 15222 Counsel for Appellant Gregory R. Begg [ARGUED] Peckar & Abramson 70 Grand Avenue Suite 200 River Edge, NJ 07661 Counsel for Appellee ___________

OPINION OF THE COURT ____________ MATEY, Circuit Judge.

Twelve years after Allied Painting & Decorating, Inc. withdrew from the International Painters and Allied Trades Industry Pension Fund, the Fund sent Allied a demand for $427,195. That is the amount the Fund says Allied owes for leaving the pension plan all those years ago. Much is made of whether Allied suffered prejudice from this lengthy delay. But diligence is what the Multiemployer Pension Plan Amendments Act of 1980 requires, and all agree that the Fund did not send Allied the bill “[a]s soon as practicable” after Allied’s withdrawal. 29 U.S.C. § 1399(b)(1). As a result, the Fund cannot recover the claimed withdrawal liability, and we will affirm the District Court’s order vacating the Arbitrator’s Award.

I.

This dispute turns on the meaning of the MPPAA, 29 U.S.C. §§ 1381–1461, an amendment to the Employee Retirement Income Security Act of 1974 enacted “to protect the financial solvency of multiemployer pension plans.” Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192, 196 (1997). With it, Congress put to paper a statutory scheme allowing private pension funds to recoup money from employers that join, and then abandon, pension plans. The idea is to keep the funds solvent and avoid employers promising but not paying retirement benefits, leaving workers without the security they earned from their labor. So Congress created “withdrawal liability” to hold employers responsible for their share of unfunded vested

2 benefits accruing after they exit a pension plan.1 See 29 U.S.C. §§ 1381, 1391. That liability is what is at issue.

A.

In 2001, Allied—a painting company—signed an agreement with District Council 711 of the International Painters Union running from May 1, 2000 to April 30, 20062 and requiring Allied to contribute to the Fund. In 2005, Allied closed its painting operations and stopped contributing to the Fund. For the next year, Allied submitted monthly reports to the Fund showing that it utilized no Painters Union work through the expiration of the agreement in April 2006.3

1 For the curious, “unfunded vested benefits” means an amount equal to the value of nonforfeitable benefits under the plan less the value of the assets of the plan. 29 U.S.C. § 1393(c). This arithmetic is not at issue here. 2 The Arbitrator found that Allied was covered by a collective bargaining agreement between the Painters Union and a coalition of employers—not including Allied—because the agreement was “implemented by Allied,” App. 89—a finding presumed correct because Allied has not shown a clear preponderance to the contrary. See 29 U.S.C. § 1401(c). A page with Allied owne