Central States, Southeast and Southwest Areas Pension Fund et al v. Sidney Insulation, Inc.

Filing 42

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 1/23/2017:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CENTRAL STATES, SOUTHEAST AND
SOUTHWEST AREAS PENSION FUND;
and ARTHUR H. BUNTE, JR., as Trustee,
Plaintiffs,
v.
SIDNEY INSULATION, INC.,
a Missouri corporation,
Defendant.

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Case No. 16 C 2746

MEMORANDUM OPINION AND ORDER
Sidney Insulation, Inc. ("Sidney Insulation") is an insulation contractor in the St. Louis
area owned by majority shareholder Sarah Sidney ("Sarah") and her minority shareholder
siblings Kevin Sidney ("Kevin") and Patrick Sidney ("Patrick"). Their father David Sidney had
owned a successful insulation company, Flexo Supply Company, Inc. d/b/a Stovey Company
Division ("Stovey"), until it went out of business in 2011.
This action stems from Stovey's withdrawal from the Central States Pension Fund
("Pension Fund" 1) on November 27, 2011 and its resulting withdrawal liability of $639,495.41 as
determined under 29 U.S.C. § 1381(b), part of the Employee Retirement Income Security Act of
1974 ("ERISA") (P. St. ¶ 5). 2

1

This opinion uses that term throughout as a matter of convenience -- in fact the
plaintiffs in this action are those stated in the case caption.
2

All further references to ERISA provisions will take the form "Section --," omitting the
prefatory "29 U.S.C. § --."

On April 30, 2013 this Court's colleague Honorable Matthew Kennelly entered judgment
in favor of Pension Fund and against Stovey in the amount of $787,967.48 (P. St. ¶ 6). Because
Stovey has not paid and cannot pay that withdrawal liability, Pension Fund brought this action to
enforce that judgment against Sidney Insulation as a claimed successor to Stovey. That has
generated cross-motions for summary judgment, and with those motions now fully briefed they
are ripe for decision. 3
Legal Standards
Every Rule 56 movant bears the burden of establishing the absence of any genuine issue
of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts
consider evidentiary records in the light most favorable to nonmovants and draw all reasonable
inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)).
Courts "may not make credibility determinations, weigh the evidence, or decide which
inferences to draw from the facts" in resolving motions for summary judgment (Payne v. Pauley,
337 F.3d 767, 770 (7th Cir. 2003)). But a nonmovant must produce more than "a mere scintilla
of evidence" to support the position that a genuine issue of material fact exists (Wheeler v.
Lawson, 539 F.3d 629, 634 (7th Cir. 2008)) and "must come forward with specific facts
demonstrating that there is a genuine issue for trial" (id.). Ultimately summary judgment is
warranted only if a reasonable jury could not return a verdict for the nonmovant (Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

3

Pension Fund's LR 56.1 Statement of Material Facts will be cited "P. St. ¶ --" with
Sidney's response cited "D. Resp. P. St. ¶ --," while Sidney's Statement of Facts will be cited
"D. St. ¶ --." Pension Fund's Memorandum in Response to Sidney's cross-motion will be cited
"P. Resp. Mem. --," while Sidney's Consolidated Memorandum in support of its cross-motion for
summary judgment will be cited "D. Mem. --."
-2-

There is a potential added complexity where, as here, cross-motions for summary
judgment are presented. Because the court must then adopt a dual perspective that this Court has
often referred to as Janus-like, it must credit the nonmovant's version of any disputed facts as to
each motion, and that could on occasion lead to the denial of both motions. Fortunately that is
not the case here, for the undisputed facts readily suffice to cause Pension Fund's motion to be
granted.
Factual Background
Stovey was formed in 1922 (D. St. ¶ 7), and David Sidney took over the company from
his father in 1981 (D. Dep. 6:13-15). Its business comprised two operations: It ran a supply
house where it sold insulation materials to insulation contractors, and it provided insulation
installation services as a subcontractor to mechanical contractors on commercial building
projects (D. St. ¶ 8). Stovey's obligations to Pension Fund arose under collective bargaining
agreements with Teamsters' Local Union No. 862 ("Local 862")(P. St. ¶ 4), agreements that
David Sidney signed on behalf of Stovey (P. St. ¶ 11).
Starting in the 2000s Stovey ran into financial trouble when it was routinely named as a
defendant in a national wave of asbestos liability lawsuits (D. St. ¶ 18). When the company's
liability insurance ran out, Stovey found itself unable to secure bonds for new insulation projects
(id.). From about 2006 to 2010 Stovey's annual income shrank from $1.5 million to $22,908
(P. St. ¶ 23). Although Stovey ceased contracting about 2007 or 2008, it continued to operate its
supply house business until 2011 (D. St. ¶ 19). Then in November 2011 Stovey terminated its
sole warehouse employee and ceased making contribution payments to Pension Fund (D. St.
¶ 19). David Sidney was Stovey's sole shareholder at the time of its withdrawal from Pension
Fund (P. St. ¶ 8).
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As is often the case in family-owned businesses, David's children worked for the
company at various points throughout its existence. Sarah worked at Stovey during the 1990s
(D. St. ¶ 11), after which she moved to various other cities to pursue educational and career
opportunities until she returned in 2002 to work at Stovey again, acting in a clerical position
(D. St. ¶ 11, 12).
It should be acknowledged at this point that there is an area of the factual background on
which the litigants part company: the roles that Sarah played over the years vis-a-vis both
Stovey and Sidney Insulation. For their part defendants insist that Sarah was never an officer of
Stovey, nor did she hold any position as a director or manager (D. Resp. P. St. ¶ 19)), nor did she
handle payroll (D. St. ¶¶ 11, 12), while for its part Pension Fund asserts that Sarah served as a
Stovey board member in 2004 and as an officer in 2004 and 2005 (P. St. ¶ 24 (d)). Notably,
Sarah is referred to as an officer of Stovey in its 2004 and 2005 tax returns (P. Ex. H at 30) and
as an officer and member of Stovey's board of directors in its 2004 filings with the Missouri
Secretary of State (D. Dep. Ex. A). 4 Pension Fund claims (1) that Stovey's accountant had
erroneously listed Sarah as an officer and director in 2004 and (2) that in actuality Sarah would
have been prohibited by law from being an officer or director of Stovey while owning a WBE "at
the same time" (D. Resp. P. St. ¶ 19). 5

4

David Sidney's deposition will be cited "D. Dep. --" with Sarah Sidney's deposition
cited "S. Dep. --"
5

It is not clear that Sarah would have owned a WBE "at the same time" as being listed as
a director and officer of Stovey, for Sidney Insulation was not given WBE status until 2005 (P.
Mem. 7). And as Pension Fund points out, holding a position on Stovey's Board of Directors
may have benefitted Sarah in her subsequent application for WBE status (P. Resp. Mem. 7,
citing City of St. Louis WBE Rules §§ II(C)(2)(c) and II(E)(8)).
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But lest those differences impermissibly pre-signal the defeat of either or both summary
judgment motions even before this opinion turns to the relevant legal analysis, a brief preview of
a critical aspect of that analysis -- though normally out of place in the section of an opinion
labeled Factual Background -- is in order. Remember first that the universally stated test of a
Rule 56 motion is its showing of the absence of any "genuine issue as to any material fact"
(Colotex Corp., 477 U.S. at 322-23). And for that purpose the universally stated definition of a
"material fact" is set out in the seminal opinion in Anderson, 477 U.S. at 248:
As to materiality, the substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.
Hence, as the ensuing section of this opinion -- that labeled Sidney Insulation's Successor
Liability -- will demonstrate in spades, the parties' just-described differences are not "material" -not even potentially outcome-determinative. And that being so, the later legal analysis can
proceed apace to decide whether summary judgment may properly be granted.
But to return to the factual background as such, it is undisputed that in 2004 Sarah
incorporated Sidney Insulation, a company whose primary business is also insulation, as its sole
shareholder (D. Resp. Mem. 4). Sarah applied for but was denied certification as a WBE in 2004
(S. Dep. 35:7-13). One year later she applied again and received such certification (id.), which
conferred special status under Missouri law in competing for bids (D. St. ¶ 13). From 2006 to
2010 Sidney Insulation's annual income grew from $539,703 to $1.2 million (P. St. ¶ 23).
Sidney Insulation and Stovey are both in the business of installing insulation, though
Sidney Insulation asserts that its target market was quite distinct from Stovey's because it worked
on much smaller scale projects, including "setasides" for minority-owned businesses (D. St.

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¶ 13). But documents from Enterprise Bank also listed a casino, Washington University and a
township as some of Sidney Insulation's contracts in 2007 (P. St. Ex. G at 3).
In 2007 and 2008 Sidney Insulation purchased from Stovey some vehicles and a host of
equipment needed to construct and install insulation (P. St. ¶¶ 10, 11, 26). At one point Stovey
also supplied insulation to Sidney Insulation, among other users (P. St. ¶ 28). When Stovey
started sourcing its insulation from third parties, Sidney Insulation began buying insulation from
those same suppliers (id.).
Sidney Insulation and Stovey ran at least part of their operations out of the same
warehouse space at 5701 Manchester Road in St. Louis (P. St. ¶ 22). For official purposes,
however, Sidney Insulation listed its business address at Sarah's personal residence in Webster
Grove, Missouri (id.). In 2007 Stovey sold the Manchester Road building to DMC, LLC, which
is owned in equal shares by Sarah, Kevin, Patrick and Megan Minnear, David Sidney's
daughter-in-law (D. St. ¶ 28). DMC leased the building to Sidney Insulation, and then Sidney
Insulation subleased part of the building back to Stovey (P. St. ¶ 22). As Stovey needed less
space for its operations, Sidney Insulation expanded (id.). Although Sidney Insulation listed its
address as 130 Roseacre Lane (Sarah's residential address) on its report filed with the Missouri
Secretary of State, Enterprise Bank notes on its loan documents that Sidney Insulation operates
out of the Manchester Road address (P. St. Ex. G at 23).
Sarah started Sidney Insulation with money she had from an inheritance as well as a
personal loan from David Sidney (D. St. ¶ 13). In the latter part of 2008 Sidney Insulation
received a line of credit from Commerce Bank that was cross-collateralized with Stovey and
personally guaranteed by both Sarah and David (P. St. ¶ 25). Pension Fund also provides
documentation showing that on July 2, 2007, Sidney Insulation received a line of credit from
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Enterprise Bank and Trust in the amount of $210,000, the stated purpose of which was to pay off
debt to Stovey (P. St. ¶ 25). David and Sarah also personally guaranteed the Enterprise loan
(id.).
Members of the Sidney family have held positions at both Stovey and Sidney Insulation.
In 2009 Sarah's brothers Kevin and Patrick purchased minority shares in Sidney Insulation
(D. St. ¶ 24). In addition to being Sidney Insulation shareholders, Patrick is a vice president and
estimator and Kevin works in the warehouse (P. St. ¶ 24(f), (h)). Both brothers had worked at
Stovey in earlier years, Kevin as a warehouseman and Patrick as an insulator (id.). As for the
siblings' father David, after winding down Stovey's operations in 2011 he consulted for several
large insulation businesses, including Sidney Insulation, while doing business as Insulation
Consultants LLC (P. St. ¶ 24(d)). In 2014 he abandoned his LLC and joined Sidney Insulation
as an estimator (id.).
To carry out the work of installing insulation, Sidney Insulation also employed members
of the same local union (Local 1) that had been used by Stovey for the same work (P. St. ¶ 4(a)),
and both Sarah and David were signatories to collective bargaining agreements with Local 1
(D. Resp. P. St. ¶ 24). Sidney Insulation employed Tim Lischwe and Nick Eaton as vice
president and corporate secretary, respectively, after they had been employed by Stovey as
estimators and had sat on its board of directors (P. St. ¶ 24(b), (g)). Sidney Insulation also
employed John Buffa and listed him as a vice president after he had likewise worked at Stovey
as an estimator and sat on its board of directors (P. St. ¶ 24(c)). And finally, Sidney Insulation
employed Christopher Smith as a warehouseman (he had previously worked for Stovey as a
truck driver) (P. St. ¶ 24(i)).

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Sidney Insulation insists that it ran its business as an entity wholly distinct from Stovey
and that it merely purchased its equipment, operated from the same location and hired its people
as a matter of convenience (D. Mem. 5-6). Indeed, Sidney Insulation claims that Stovey's steady
decline in business and operations had everything to do with asbestos liability and financial
challenges and nothing to do with plans for Sarah to "take over" Stovey when David retired
(D. St. ¶¶ 18, 19). But Pension Fund asserts that the separation of businesses was a mere
formality and that for all intents and purposes Sidney Insulation took over Stovey when David
was ready to retire, with a clear continuity of operations (P. Mem. 3-4). To bolster that claim
Pension Fund provides a statement under the heading "Relationship Manager Commentary,"
taken from documents prepared by Enterprise Bank with respect to Sidney Insulation's
line-of-credit application (P. Ex. G at 3):
Sidney Insulation is a young company. Sarah's father owns the Stovey Company,
which is a large insulation installer. Sarah started her company in September of
2004 and had her first full year of operations in 2005. As her father is gearing up
for refirement he is winding down the operations of Stovey. Because she is a
woman owned business and knew it would be benefit to have the WBE
Certification as a minority owned company, it prevented her from "taking over"
Stovey. So as Stovey winds down, Sidney insulation is growing quickly. She has
received several large contracts because of the WBE designation, including: The
new Pinnacle Casino of approx. $700M for 2007, Washington University and
Rock Hill Township. Sarah's father was big in the industry so she has retained
her maiden name for the familiarity, she has also hired a well known gentlemen in
the industry that has a wide following. He has been instrumental in the company's
rapid growth as well.
Sidney Insulation's Successor Liability
Designed to maximize fluidity of corporate assets, the common law rule is that "a
corporation that merely purchases for cash the assets of another corporation does not assume the
seller corporation's liabilities" (Upholsterers' Int'l Union Pension Fund v. Artistic Furniture of

-8-

Pontiac, 920 F.2d 1323, 1325 (7th Cir. 1990) (internal citation and quotation marks omitted)). 6
That general rule is limited by any of four exceptions: where "(1) there is an express or implied
assumption of liability; (2) the transaction amounts to a consolidation, merger, or similar
restructuring of the two corporations; (3) the purchasing corporation is a 'mere continuation' of
the seller and (4) the transfer of assets to the purchaser is for the fraudulent purpose of escaping
liability for the seller's debts" (id. at 1325-26).
But the Supreme Court has also imposed successor liability in other instances when doing
so is necessary to vindicate an important federal statutory policy, when there is notice to the
successor and when there are sufficient indicia of continuity of operations (id. at 1326). One
such important federal statutory policy is embodied in the Multiemployer Pension Plan
Amendments Act of 1980 ("Multiemployer Plan Act"), which amended ERISA "by imposing
liability on employers who withdraw, partially or completely, from participation in an
underfunded multiemployer pension fund" (Board of Trs. of Auto. Mechanics' Local No. 701
Union & Industry Pension Fund v. Full Circle Group, 826 F.3d 994, 995 (7th Cir. 2016)). 7
Because multiemployer pension plans are defined-benefit, all the remaining employers have to
make up the difference when one employer fails to make its required contribution (Artistic
Furniture, 920 F.2d at 1327-28).
Congress passed the Multiemployer Plan Act "in order to 'relieve the funding burden on
remaining employers' and to 'avoid creating a severe disincentive to new employers entering the
plan. . ."' (Artistic Furniture, 920 F.2d at 1328 (quoting H.R. Rep. No. 96-869, pt. 1, at 67

6

Hereafter that opinion is cited for convenience as "Artistic Furniture."

7

Hereafter that opinion is cited for convenience as "Full Circle."
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(1980), as reprinted in 1980 U.S.C.C.A.N. 2918, 2935)). Affording statutory status to
employers' contractual duties toward multiemployer pension plans (see Section 1145), the
Multiemployer Plan Act also authorized certain parties to sue in federal court to enforce those
obligations (see Section 1132) (Artistic Furniture, 920 F.2d at 1328). Hence imposition of
successor liability is entirely appropriate when necessary to enforce the withdrawal liability
section of the Multiemployer Plan Act if the other tenets of successor liability are met (id.).
Because successor liability is an equitable doctrine, a court considering its imposition
should "carefully balanc[e] the need to vindicate important federal statutory policies with
equitable considerations" (Tsareff v. ManWeb Servs., 794 F.3d 841, 845 (7th Cir. 2015)). Here
imposing successor liability on Sidney Insulation is appropriate if there was adequate notice and
if Sidney Insulation and Stovey exhibited operational continuity.
Notice
Notice of withdrawal liability can be either actual or implied (Artistic Furniture, 902 F.2d
at 1329), and as to the latter alternative "[n]otice can be implied from a variety of circumstances,
such as common control or proximity" (Sullivan v. Running Waters Irrigation, Inc., 739 F.3d
354, 357 (7th Cir. 2014), citing Artistic Furniture). And Full Circle, 826 F.3d at 997 has
concluded that when a successor knew that the predecessor's workers were unionized "[t]hat
knowledge should have alerted him to the possibility of withdrawal liability, which he could
have verified by asking [the predecessor] to get an estimate from the union of the union's
liabilities to its members. (See Section 1021(l))."
Summary judgment doctrine requires federal courts to draw all reasonable inferences in
favor of a non-movant (Lesch, 282 F.3d at 471). But of course the doctrine's operative word in

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that respect is "reasonable" -- a court is not obligated to draw all possible favorable inferences to
enable a litigant to escape summary judgment.
In this instance the undisputed facts show that at a minimum Sarah, as a former employee
of the predecessor company and daughter of its owner, had the necessary implied knowledge of
Stovey's withdrawal liability. In an unpersuasive effort to escape that showing, Sidney
Insulation contends that Sarah was never an officer of Stovey and that its accountant listed her as
an officer on the tax returns "erroneously" (D. Mem. 6), and it contends further that she did not
know of a collective bargaining agreement that provided for participation in the Pension Fund
(D. Mem. 9).
But it strains credulity past the breaking point to accept a contention that when Sarah was
employed at Stovey, and as she built her own business that delivers exactly the same services as
Stovey, she was not "intimately familiar with [Stovey's] operations." At the very least Sarah
must have known that the trucking and warehouse workers at Stovey were unionized (note that
her brother Kevin -- who later went on to work at Sidney Insulation and to own 14 percent of the
company -- was himself a member of Local 682) (P. St. ¶ 12). And Sidney Insulation employs
and is party to a collective bargaining agreement with the same asbestos workers union (Local 1)
that Stovey dealt with. As Full Circle, 826 F.3d at 997 teaches as a matter of law, such a
concatenation of factors "should have alerted" Sidney Insulation to "the possibility of withdrawal
liability."
Sidney Insulation also denies that David had "any knowledge about much less the
concept of withdrawal liability" before Sidney Insulation purchased Stovey's assets in 2009
(D. Mem. 9). But whether or not that is so is wholly irrelevant as a matter of law. Remember
that our Court of Appeals imposes withdrawal liability on a successor who is aware that the
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predecessor's workers are unionized yet is ignorant of the fact or concept of withdrawal
liability -- and that being so, it would make no sense at all to excuse the predecessor from the
congressionally-created (and court-honored) withdrawal liability because of the same level of
ignorance. David Sidney had operated his business for decades, and his company was a party to
the collective bargaining agreement with Local Union 862. It is simply unacceptable for him to
play ostrich, figuratively hiding his head in the sand.
To shift to another aspect of the requirement of notice to impose successor liability, that
requirement is imposed in part to protect "an innocent purchaser who did not have an opportunity
to protect itself by obtaining indemnification or negotiating a lower purchase price" (Tsareff, 794
F.3d at 849). Sidney Insulation is not in need of such protection, because it was not an "innocent
purchaser." To the contrary, it availed itself of the benefits of operating as a quasi-joint family
company with Stovey during the seven years that the two co-existed. On that score the Factual
Background section has already reflected that David sold Stovey's building to an LLC, 3/4 of
which was owned by Sidney Insulation's shareholders, enabling that LLC to lease the building
back to Sidney Insulation and Stovey. With the four Sidney family members thus involved in
three separate legal entities with overlapping ownership, they cannot call on any notion that
reasonable inferences spare them from "notice" as construed under controlling caselaw.
Continuity of Operations
Our Court of Appeals has regularly taken a totality-of-the-circumstances approach to
finding successor liability, weighing a number of factor (see, e.g., Int'l Union of Operating
Eng'rs, Local 150, AFL-CIO v. Centor Contractors, Inc., 831 F.2d 1309, 1312 (7th Cir. 1987)).
In deciding whether the continuity-of-operations factor has been established, Artistic Furniture,
920 F.2d at 1329 considered that the successor had "employed substantially all of Pontiac's [the
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predecessor's] workforce and it appears, supervisory personnel as well. It used Pontiac's plant,
machinery, and equipment and manufactured the same products," and two vice presidents stayed
on as senior management of the successor company.
"Continuity of operations" deals with a different factual scenario in the present case,
because rather than entering into a merger or acquisition Sidney Insulation and Stovey co-existed
for approximately seven years, technically as separate companies. But the undisputed facts show
that for all intents and purposes such separation was indeed a mere technicality rather than a
real-world substantive difference, for the companies shared assets, and over time Sidney
Insulation came to acquire much of Stovey's space, workers and operational infrastructure.
More specifically, rather than selling Stovey to his daughter Sarah or grooming her to
take over that company David gradually transferred his workers, trucks and equipment to Sidney
Insulation. And on a related 8 front, he sold his warehouse to an LLC comprising his three
children and his daughter-in-law Megan Minnear, who then leased the property back to both
Stovey and Sidney Insulation, where they shared space for a number of years before Sidney
Insulation slowly took over more of the space as Stovey reduced operations. Moreover, David
also used his own personal funds and his own company as collateral to finance Sidney Insulation.
And after closing Stovey's doors, he eventually joined Sidney Insulation as a consultant and then
as a full-time employee.
In a classic example of a lawyer's often-perceived function as advocate "to make the
worse appear the better reason," 9 Sidney Insulation asserts that Stovey's transfer of workers,

8

Bad pun intended.

9

Aristophanes, Clouds.
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assets and space was a matter of coincidence and convenience, that Stovey wound down its
business because of the high costs of asbestos liability, that Stovey sold its assets to Sidney
Insulation at fair-market value (which is hardly relevant) and that Sidney Insulation merely
"poached" employees from Stovey, as it would do to any other company (D. St. ¶ 9). Those
makeweight contentions do not obscure the already-discussed factors that conclusively establish
the continuity of operations -- note the related factor that although Sidney Insulation may have
started with smaller scale contracts than Stovey's "hospitals and sports stadiums" (D. St. ¶ 9), by
2008 it listed on its Enterprise loan documents contracts for a casino, a township and a university
(see P. Ex. G at 3).
Indeed, any scintilla of doubt as to Sidney Insulation's status as a clear successor to
Stovey would be dispelled by the description of the two companies' relationship in the Enterprise
loan document -- a smoking gun, in actuality. To repeat part of the earlier-quoted excerpt from
that document, here is the image of their relationship that the two companies themselves
projected in order to receive financing:
As her father is gearing up for retirement he is winding down the operations of
Stovey. Because she is a woman owned business and knew it would be beneficial
to have the WBE Certification as a minority owned company, it prevented her
from "taking over" Stovey. So as Stovey winds down, Sidney Insulation is
growing quickly.
Thus Sidney Insulation has taken full advantage of its predecessor-successor relationship with
Stovey by holding itself out as such for the purposes of financing. And the accuracy of that
portrayal is confirmed by all of the factors that this opinion has recounted -- factors such as its
acquisition of Stovey's personnel, together with their expertise gained while working at Stovey,
and its occupancy of space that was sold by Stovey to an LLC largely owned by David's children
who are Sidney Insulation's shareholders. It would be wholly unjust for this Court to allow
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Sidney Insulation to enjoy such benefits while absolving the company of responsibility for its
predecessor's withdrawal liability to Pension Fund.
Conclusion
There is no genuine issue of material fact that stands in the way of a summary judgment
in favor of Pension Fund. This Court grants its summary judgment motion (Dkt. No. 26), ruling
that Sidney Insulation, Inc. is liable as the successor to Stovey for withdrawal liability, and of
course it denies the cross-motion by Sidney Insulation, Inc. (Dkt. No. 33). Judgment is ordered
to be entered in favor of Central States, Southeast and Southwest Areas Pension Fund and
Arthur H. Bunte, Jr. as Trustee against Sidney Installation, Inc. in the sum of the following
amounts: 10
1. $639,495.41 in withdrawal liability;
2. $137,478.52 in interest;
3. $137,478.52 in liquidated damages;
4. $21,609.00 in attorney's fees;
5. $2,372.51 in costs; 11
6. additional interest on the withdrawal liability of $639,495.41 that will have accrued
from October 16, 2016 to the date of payment, calculated at an annualized interest

10

These amounts do not reflect any amount for reasonable attorney's fees and costs
incurred for the period since October 16, 2016. Pension Fund may hereafter file a claim for such
additional amount pursuant to Section 1132(g), but the potential for such filing shall not affect
the finality of this judgment (see Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-03
(1988)), and as such there is no need to make a determination under Rule 54(b).
11

Items 1 through 5 reflect the amounts due as of October 16, 2016 as itemized in
Pension Fund's Mem. 14-15 and described in its Statements of Material Facts 29 through 32, all
of which were admitted by Sidney Insulation.
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rate of 2% plus the prime interest rate established by JPMorgan Chase Bank, N.A. for
the 15th day of the month for which interest is charged;
7. additional liquidated damages equal to the amount of interest provided for in item 6.
This is the final judgment in this action.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: January 23, 2017

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