MILLER AND SON PAVING, INC. v. TEAMSTERS PENSION TRUST FUND OF PHILADELPHIA & VICINITY

Filing 21

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 9/14/2016. 9/14/2016 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MILLER & SON PAVING, INC.,
Appellant,
v.
TEAMSTERS PENSION TRUST FUND OF
PHILADELPHIA AND VICINITY,
Appellee.

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MCHUGH, J.

CIVIL ACTION
No. 15-4869

SEPTEMBER 14, 2016
MEMORANDUM

This is an ERISA case involving an employer’s obligation to fund future
liabilities when withdrawing from a pension plan. The employer has appealed an
arbitrator’s opinion and award, challenging the method of calculating its liability when it
withdrew from a multiemployer pension plan. Because I find that the employer’s
withdrawal liability was calculated under a reasonable interpretation of the plan and its
supplementary documents, I affirm the arbitrator’s opinion and award.
I.

Background on the Parties and Withdrawal Liability
Appellee (the Fund) is a jointly administered multiemployee pension benefit plan

within the meaning of the Employee Retirement Income Security Act of 1874 (ERISA),
29 U.S.C. §§ 1001–1461, and the Multiemployer Pension Plan Amendments Act of 1980
(MPPAA), id. §§ 1381–1461. Appellant (Miller) is a Pennsylvania corporation that
contributed to the Fund pursuant to a number of collective bargaining agreements to
which Miller was a party. On or about December 31, 2011, Miller ceased its operations
covered by the Fund and effected a “complete withdrawal” from the Fund within the

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meaning of the MPPAA, id. § 1383(a)(2). The Fund determined that Miller had incurred
withdrawal liability1 of $1,487,097.71. Miller challenged the assessment of liability—
claiming it should have been reduced to $601,634—and submitted a Demand for
Arbitration. An evidentiary hearing was held before an arbitrator, Mariann Schick, Esq.,
and she issued an Opinion and Award on July 30, 2015, approving the Fund’s calculation
of withdrawal liability.
1

Writing for the Seventh Circuit, Judge Posner has provided this helpful background on withdrawal
liability:
Multiemployer pension plans—which are governed, as single-employer plans are, by
ERISA—are created by collective bargaining agreements to provide benefits to
employees of many different firms. Thus they are found in industries such as
construction and trucking in which workers do short-term, seasonal, or irregular work for
many different employers over their working lives. When an employer withdraws from
such a plan, the plan remains liable to the employees who have vested pension rights,
though it no longer can look to the employer to contribute additional funds to cover these
obligations.
In an effort to prevent withdrawals that will shift the burden of funding the pension
plan to the remaining employers and by doing so may precipitate additional withdrawals,
provisions added to ERISA by the [MPPAA] assess the employer with an exit price equal
to its pro rata share of the pension plan’s funding shortfall. The shortfall (“unfunded
vested benefits”) is the difference between the present value of the pension fund’s assets
and the present value of its future obligations to employees covered by the pension plan.
29 U.S.C. §§ 1381, 1391. (If the present value of the assets exceeds the present value of
the plan's future obligations, there is no shortfall.)
Estimation of the shortfall depends critically on estimating the amount by which the
fund’s current assets can be expected to grow by the miracle of compound interest. The
higher the estimated rate of growth, the less the employers must put into the fund today to
cover the future entitlements of the plan’s participants and beneficiaries. “[F]or a typical
plan, a change (upward or downward) of 1 percent in the interest assumption (e.g. an
increase from 6 to 7 percent) alters the long-run cost estimate by about 25 percent.”
In addition to estimating the size of the plan’s funding shortfall, the pension plan
must apportion responsibility for the shortfall among the employers participating in the
plan. Each employer must pay his share to the fund if and when he withdraws, so that the
plan can pay the employer’s share of the plan’s unfunded vested benefits as those benefits
come due in the future. . . .
....
Estimating the growth of the fund’s assets is required not only for determining
withdrawal liability but also for determining whether employers are contributing to the
fund the minimum amount required by ERISA in order to reduce the probability that the
Pension Benefit Guaranty Corporation may have to make up for the fund’s not being able
to pay vested benefits; for the Corporation is the insurer of those benefits, though only to
a limited extent.
Chi. Truck Drivers v. CPC Logistics, Inc., 698 F.3d 346, 347–48, 353 (7th Cir. 2012) (some
citations omitted).

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II.

The Arbitration
ERISA provides that “[e]very employer benefit plan shall be established and

maintained pursuant to a written instrument.” 29 U.S.C. § 1102(a)(1). The plan’s
fiduciary must act “in accordance with the documents and instruments governing the plan
insofar as” they are consistent with ERISA. Id. § 1104(a)(1)(D).
This case turns on the Fund’s calculation of Miller’s withdrawal liability pursuant
to Article IX, Section C (Section C) of the Teamsters Pension Plan of Philadelphia and
Vicinity (the Plan), which provides in relevant part:
In accordance with the advice of the Trust Fund’s enrolled actuary, the
actuarial assumptions used in calculating withdrawal liability shall be the
same actuarial assumptions used in determining the Trust Fund’s
minimum funding standards under the Internal Revenue Code.
The record presented to the Arbitrator shows that the Fund calculated the relevant figures
as follows. In evaluating the needs of the Plan, during the years 2000 to 2008, the Fund
used a 7.5% interest rate, called a “valuation rate,” to calculate both minimum funding
standards and withdrawal liability. In 2009, however, the Fund began to calculate
minimum funding standards using a second interest rate assumption—the “current
liability rate”—in combination with the 7.5% valuation rate. The Fund used these two
rates in tandem to create a range of values to select from in setting its minimum funding
standards. In 2011, the year the Fund calculated Miller’s withdrawal liability, the current
liability rate was 4.47%.
At the same time, the Fund also began to calculate withdrawal liability differently.
The Fund began to use a “blended rate”—a particular application of both the 7.5%
valuation rate and the 4.47% current liability rate—to determine the present value of
vested benefits for withdrawal liability purposes. Ex. J-1(G) at 40. The Fund valued the
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funded portion of the benefits at the valuation rate of 7.5%, and the unfunded portion at
the current liability rate of 4.47%. Ex. J-1(G) at 40. The Fund’s actuary testified that the
Fund began using the blended rate “[b]ecause the plan wasn’t healthy, and we decided to
use something to increase the liabilities of the plan to protect the plan.” Hr’g Tr. (H.T.)
91:18–23.
In the arbitration, Miller argued that use of the blended rate in calculating
withdrawal liability violated the plain language of Section C, because although both the
7.5% valuation rate and the 4.47% current liability rate were used individually in
calculating minimum funding standards, the blended rate was not. By Miller’s reasoning,
the “same actuarial assumptions” were not used in calculating both minimum funding
standards and withdrawal liability. The Fund, in response, argued that Section C only
requires that the same actuarial assumptions be used, and does not require that those
assumptions be used in the same way in each calculation. Thus by using the same
actuarial assumptions—the 7.5% valuation rate and the 4.47% current liability rate—the
Fund complied with Section C.
The Arbitrator agreed with the Fund, concluding that Section C did not prevent
the Fund from using the blended rate to calculate withdrawal liability. She first
recognized that the Plan gives the Fund’s Trustees the authority
[t]o construe, in their sole and exclusive discretion, the terms and
provisions of this Declaration of Trust, the Pension Plan, and all other
supplementary and amendatory documents, and the construction adopted
by the Trustees in good faith shall be binding upon the Employers, the
Union, the Employes, and any beneficiaries.
Ex. J-1(F) at 11 (some capitalization omitted). The Arbitrator also noted that “any
ambiguity in the language must be construed against Miller.” Op. 14 (citing Fleisher v.

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Standard Ins. Co., 679 F.3d 116, 121 (3d Cir. 2012)). She agreed with the Fund that “the
decision of the Trustees regarding the interpretation of their pension plan documents must
be followed, unless such interpretation is arbitrary and capricious.” Op. 14.
The Arbitrator further reasoned that, in requiring use of the “same actuarial
assumptions” to calculate both minimum funding standards and withdrawal liability,
Section C did not require that these assumptions “be used in the same way” in making
each set of calculations. Op. 22. She thus credited the Fund’s actuary’s testimony that
by treating the valuation rate assumption and the current liability rate assumption
individually for minimum funding purposes and blending them for withdrawal liability
purposes, the Fund used the same actuarial assumptions in making each set of
calculations. Op. 15, 20–23. She ultimately concluded that the Fund’s interpretation of
Section C complied with its language and was not arbitrary and capricious, and upheld
the Fund’s calculation of withdrawal liability. Op. 20–23.
Miller subsequently filed this action pursuant to 29 U.S.C. §§ 1401(b)(2) &
1451(c), requesting that this Court vacate that portion of the Arbitrator’s Opinion and
Award. 2 The parties have now filed cross-motions for summary judgment.
III.

Standard of Review
Motions for summary judgment are governed by the well-established test set forth

in Federal Rule of Civil Procedure 56(a), as amplified by Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986), but particular rules apply in this context. In reviewing an
arbitrator’s decision under ERISA, “the district court presumes that the arbitrator’s
factual findings are correct unless they are rebutted by a clear preponderance of the
2

In the arbitration, Miller also challenged the calculation of the Fund’s assets on the date of withdrawal and
the Fund’s assessment of interest on quarterly payments, but Miller is not challenging the Opinion and
Award on those issues in this action. See Miller Br. 2–3.

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evidence,” while “[t]he arbitrator’s legal conclusions are reviewed de novo.” Crown
Cork & Seal Co. v. Cent. States Se. & Sw. Areas Pension Fund, 982 F.2d 857, 860 (3d
Cir. 1992). A “district court may not vacate an arbitration award merely because it would
decide the merits differently. So long as the arbitration award has some support in the
record, and the arbitrator has not manifestly disregarded the law, [the district court] will
affirm the award.” Eichleay Corp. v. Int’l Ass’n of Bridge, Structural, & Ornamental
Iron Workers, 944 F.2d 1047, 1057 (3d Cir. 1991) (citation omitted).
Similarly, when a plan’s trustees act under their authority to interpret a plan’s
terms, the district court reviews the trustees’ interpretation under the arbitrary and
capricious standard, and “the trustees’ interpretation ‘should be upheld even if the court
disagrees with it, so long as the interpretation is rationally related to a valid plan purpose
and not contrary to the plain language of the plan.’” Moats v. United Mine Workers of
Am. Health & Retirement Funds, 981 F.2d 685, 687–88 (3d Cir. 1992) (Alito, J.) (quoting
Gaines v. Amalgamated Ins. Fund, 753 F.2d 288, 289 (3d Cir. 1985)).
IV.

Discussion
A.

The Arbitration Award

Section C of the plan relevantly provides,
In accordance with the advice of the Trust Fund’s enrolled actuary, the
actuarial assumptions used in calculating withdrawal liability shall be the
same actuarial assumptions used in determining the Trust Fund’s
minimum funding standards under the Internal Revenue Code.
Miller offers two main arguments on appeal. First, Miller argues that the
Arbitrator gave too much deference to the Fund’s interpretation of the words “same
actuarial assumptions used.” Specifically, Miller argues that deference to the Fund’s
interpretation of the Plan is not warranted if that interpretation is inconsistent with
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unambiguous Plan language. Br. 10–12. Going further, Miller claims that “same
actuarial assumptions used” is unambiguous, and therefore the Arbitrator erred in
“ignor[ing]” this threshold question. Br. 10–12.
Second, Miller argues that the Fund’s interpretation of “same actuarial
assumptions used” is contrary to a plain reading. Miller’s argument for why the Fund ran
afoul of Section C is appealingly simple: The Fund used the blended rate in calculating
withdrawal liability but did not use the blended rate in calculating minimum funding
standards. Miller claims that one of two things must be true: either the blended rate is
itself an actuarial assumption, or the words “same actuarial assumptions used” require
that the two separate actuarial assumptions of the 7.5% valuation rate and the 4.47%
current liability rate be used in the same way in making each set of calculations. Under
either view, according to Miller, the Fund used different actuarial assumptions in making
each set of calculations, violating the Plan. Br. 15–22.
I reject both arguments because I find that Section C is ambiguous and that the
Fund’s interpretation of Section C is rationally related to a valid Plan purpose.
1. Ambiguity
It is true that the Arbitrator passed quickly over the question whether Section C is
ambiguous and therefore open to multiple interpretations. But because the determination
“whether a contract term is clear or ambiguous is a question of law for the court,”
Einhorn v. Fleming Foods of Pa., Inc., 258 F.3d 192, 194 (3d Cir. 2001), I consider the
question now.
“A term is ambiguous if it is susceptible to reasonable alternative interpretations.”
Sanford Inv. Co. v. Ahlstrom Mach. Holdings, Inc., 198 F.3d 415, 421 (3d Cir. 1999).

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The only issue then is whether Section C’s requirement—that the actuarial assumptions
used in making a first set of calculations be the “same actuarial assumptions used” in
making a second set—can reasonably be interpreted to include the use of two different
interest rates individually in the first set, but a blend of those two rates in the second set.
I take each term in turn.
First, the word “same,” in its common usage, means “something identical with or
similar to another.” Webster’s Third New International Dictionary 2007 (1993).
Second, as the Fund’s actuary testified, an “actuarial assumption” is an estimate of the
present value of future variables, such as employee retirement, mortality, and turnover
rates—and interest rates. H.T. 106:3–10; see also Mead Corp. v. Tilley, 490 U.S. 714,
717 (1989) (“actuarial assumptions” include “such things as employee turnover, mortality
rates, compensation increases, and the rate of return on invested plan assets”). Third,
“used” means “put into action or service.” Webster’s Third, supra, at 2523. 3
Using these ordinary definitions, I find that, by using the blended rate to calculate
withdrawal liability but separate individual rates to calculate minimum funding standards,
the Fund complied with a reasonable interpretation of Section C. In each set of
calculations, the Fund applied a 7.5% valuation rate and a 4.47% current liability rate.

3

Miller relies on Merriam–Webster’s Collegiate Dictionary for its claim that the crux of the dispute lies in
competing interpretations of the word “same”: “The word same as used here has only one reasonable
meaning, and that is [(1)] ‘something identical with’ or ‘similar to another’; [(2)] ‘resembling in relevant
aspect’; or [(3)] ‘corresponding so closely as to be indistinguishable.’” Br. 12 (second emphasis added).
But neither the Fund nor the Arbitrator disputes this interpretation of “same.” See Fund Br. 8 (showing that
the Fund “used two different interest rate assumptions (4.47% and 7.5%) to determine the Fund’s minimum
funding standards,” and then “blended (and thus used) those same two interest rates to calculate . . .
withdrawal liability”); Op. 21–22 (“[O]ne set of interest rates cannot be used for the calculations involved
with withdrawal liability, while another set is used for the calculation of the minimum funding standard.
Indeed, the actuarial report demonstrates that the interest rates used in withdrawal liability were in fact the
same ones used in determining the minimum funding standard.”). Rather, the root of the dispute is whether
Section C unambiguously requires that these actuarial assumptions be used in the same way in making each
set of calculations. As I show below, it does not.

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The Fund thus (1) put into action or service (2) identical (3) interest rates—or, in other
words, (1) used (2) the same (3) actuarial assumptions. The only distinction is that the
Fund used these two rates differently in each set. Miller seizes on this, claiming that
“[o]f course” Section C “require[s] that the ways in which [the assumptions] are used in
both calculations be identical.” Br. 16 (emphasis added). On its face, however, Section
C contains no such requirement, and Miller’s characterization of it is wholly conclusory
and devoid of any supporting analysis or authority.
Most importantly, it is reasonable to interpret the Fund’s actuary’s report 4 to
mean that the blended rate is not actually an assumption in and of itself, but rather a
particular method of applying other assumptions. Specifically, the blended rate is an
application of the 7.5% valuation rate to the funded part of the Fund’s vested benefits and
the 4.47% current liability rate to the unfunded part of those benefits. Ex. J-1(G) at 40.
This is permitted under a reasonable interpretation of Section C, which requires only that
the Fund calculate withdrawal liability under the “same actuarial assumptions used” to
calculate minimum funding standards. The Plan’s drafters could have explicitly required
that not only must the same actuarial assumptions be used, but that the same methods of
applying those assumptions be used as well. Such a model is exemplified by 29 U.S.C.
§ 1393(a)(1), which requires that withdrawal liability be determined based on reasonable
“actuarial assumptions and methods” (emphasis added); see also Elbeco Inc. v. Nat’l
Retirement Fund, 128 F. Supp. 3d 849, 860–61 (E.D. Pa. 2015) (recognizing the
distinction between actuarial assumptions and the methodology used to calculate
4

As noted earlier, Article IV, Section 1(s) of the Plan gives the Trustees the power to “construe, in their
sole and exclusive discretion, the terms and provisions of . . . the Pension Plan, and all other supplementary
and amendatory documents, and the construction adopted by the Trustees in good faith shall be binding
upon the Employer” (some capitalization omitted).

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withdrawal liability). The Plan’s drafters did not so specify. I therefore find that Section
C is amenable to more than one interpretation and can reasonably be read to permit use of
the blended rate to calculate withdrawal liability but not to calculate minimum funding
standards. 5
2. Rationally Related to a Valid Plan Purpose
While arbitrary and capricious review of trustees’ interpretation of a pension plan
is not searching, it is not enough that a Plan contain ambiguous language. The trustees’
interpretation of that language must also be “rationally related to a valid plan purpose.”
Moats, 981 F.2d at 688. I agree with the Arbitrator that the Fund’s use of the blended
rate under its interpretation of Section C furthered the valid goal of ensuring the Fund
could meet its future obligations to its members.
ERISA was designed “to ensure that employees and their beneficiaries would not
be deprived of anticipated retirement benefits by the termination of pension plans before
sufficient funds have been accumulated in the plans.” Connolly v. Pension Benefit Guar.
Corp., 475 U.S. 211, 214 (1986). “The purposes behind ERISA and the MPPAA” are to
“ensur[e] that pension funds will be adequately funded, even when employers withdraw
from them, and that the employees who are relying on those funds will be protected.”
Pittsburgh Mack Sales & Serv., Inc. v. Int’l Union of Operating Eng’rs, Local Union No.
66, 580 F.3d 185, 194 (3d Cir. 2009). For these reasons, ERISA requires that withdrawal
5

It is true, as Miller points out, that the Fund’s actuary’s report contains the following: “For purposes of
determining the present value of vested benefits for withdrawal liability, the same actuarial assumptions
are used in the valuation for plan funding with the exception of the assumed rate of investment return which
is a blend of interest assumptions for current liability (4.47%) and plan funding assumptions (7.50%).” Ex.
J-1(G) at 40 (emphases added). It is possible to read this to mean that the blended rate is itself an actuarial
assumption. But I need not—and indeed cannot—decide whether the Fund’s contrary interpretation of the
Plan and the actuary’s report is correct. See Dewitt v. Penn-Del Directory Corp., 106 F.3d 514, 520 (3d
Cir. 1997) (“arbitrary and capricious review” means “a fiduciary’s interpretation of a plan will not be
disturbed if reasonable”). I find only that it was reasonable and made in good faith.

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liability be determined on the basis of “actuarial assumptions and methods which, in the
aggregate, are reasonable (taking into account the experience of the plan and reasonable
expectations) and which, in combination, offer the actuary’s best estimate of anticipated
experience under the plan.” 29 U.S.C. § 1393(a)(1).
The Arbitrator found that the Fund had a clear and valid purpose in using the
blended rate to calculate withdrawal liability: shoring up an economically unhealthy
Fund. Through 2008, the Fund had calculated minimum funding standards and
withdrawal liability using the 7.5% valuation rate. But the Fund had lost significant
assets because of the 2008–2009 economic recession, leaving a greater percentage of the
Fund’s vested benefits unfunded. As the Fund’s actuary testified, “[T]he plan wasn’t
healthy, and we decided to use something to increase the liabilities of the plan to protect
the plan.” H.T. 91:18–23. That “something” was using the blended rate to calculate
withdrawal liability, which works by calculating the funded part of vested benefits using
the 7.5% valuation rate and the unfunded part using the 4.47% current liability rate. Ex.
J-1(G) at 40. As the Arbitrator recognized, because “[l]iabilities owed vary inversely
with the interest rate,” using the blended rate “produce[d] a greater contribution to the
unfunded liability than would be produced by a straight 7.5% interest rate.” Op. 23.
I find the Fund’s use of the blended rate to calculate withdrawal liability
consistent with ERISA’s goal of ensuring that the Fund has adequate funds to pay out
vested benefits to its members. As the Arbitrator found, if after 2008 the Fund had
continued to use a 7.5% valuation rate to calculate withdrawal liability, this would “have
been going against its best estimate of what interest rate calculation would best serve a
fund in an unhealthy status.” Op. 22. This would have been inconsistent with ERISA’s

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requirement that withdrawal liability be based on assumptions that “offer the actuary’s
best estimate of anticipated experience under the plan.” I therefore find the Fund’s
decision consistent with the valid purpose of ensuring the economic health of the Plan. 6
Cf. Moats, 981 F.2d at 688 (“[T]he Trustees’ decision was rationally related to a valid
plan purpose—namely, the preservation of Plan resources . . . .”).
The Arbitrator’s Opinion and Award is affirmed.
B.

Attorney’s Fees

The Fund seeks attorney’s fees as the prevailing party. In an MPPAA action, “the
court may award all or a portion of the costs and expenses incurred in connection with
such action, including reasonable attorney’s fees, to the prevailing party.” 29 U.S.C.
§ 1451(e). The Court of Appeals has held that in exercising its discretion to grant or deny
fees, a district court must consider “(1) the offending parties’ culpability or bad faith;
(2) the ability of the offending parties to satisfy an award of attorney’s fees; (3) the
deterrent effect of an award of attorney’s fees; (4) the benefit conferred upon members of
the pension plan as a whole; and (5) the relative merits of the parties’ positions.”
Templin v. Independence Blue Cross, 785 F.3d 861, 867 (3d Cir. 2015) (citing Ursic v.
Bethlehem Mines, 719 F.2d 670, 673 (3d Cir. 1983)).

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Miller halfheartedly relies on the Seventh Circuit’s decision in Chicago Truck Drivers for the proposition
that using different rates to calculate minimum funding standards and withdrawal liability is an
impermissible “manipulation” that penalizes withdrawing employers. Br. 20. But the holding of Chicago
Truck Drivers does not apply here. In that case, the fund’s trustees directed its actuary to use an interest
rate higher than the actuary’s best estimate to calculate withdrawal liability—resulting in lower withdrawal
liability for employers. 698 F.3d at 354–55. The trustees did this solely because of the “trustees’ desire to
attract employers to the fund by manipulating withdrawal liability.” Id. at 356. This directly violated
ERISA’s requirement that withdrawal liability be calculated based on “the actuary’s best estimate of
anticipated experience under the plan.” 29 U.S.C. § 1393(a)(1). Miller has presented no evidence that its
withdrawal liability was based on anything other than the Fund’s actuary’s best estimate of anticipated
experience under the Plan, the opposite of what occurred in Chicago Truck Drivers.

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The first factor, Miller’s culpability or bad faith, weighs against awarding fees.
The issues here are complex enough and subtle enough, and the amount at issue great
enough, that Miller did not act in bad faith in taking this appeal. The Fund appears to
base its claim for fees principally upon Miller’s lack of response to its argument that
ERISA indisputably gives sole discretion to a pension plan’s actuary in cases such as this.
I am not persuaded that this argument, which I found no need to reach, is necessarily as
irrefutable as the Fund would suppose. See also McPherson v. Emps.’ Pension Plan of
Am. Re-Ins. Co., 33 F.3d 253, 257 (3d Cir. 1994) (“A party is not culpable merely
because it has taken a position that did not prevail in litigation.”).
The fifth factor, the relative merits of Miller’s and the Fund’s positions, neither
weighs in favor of awarding nor denying fees. While the Fund carried the day, it had the
benefit of arbitrary and capricious review. And I do not agree with the Fund that “Miller
has no conceivable basis for describing the Fund’s position as ‘arbitrary and capricious.’”
Fund Br. 24. Indeed, Miller’s arguments were grounded in a reasonable interpretation of
Section C. See, e.g., supra note 5. Like Judge Gardner, “I am ultimately guided by the
fact that in the cases where defendants have been granted attorneys’ fees and costs, the
lack of any merit was clear.” Estate of Schwing v. Lilly Health Plan, 898 F. Supp. 2d
759, 772 (E.D. Pa. 2012) (emphasis added) (citing Monkelis v. Mobay Chem., 827 F.2d
935, 936 (3d Cir. 1987); Loving v. Pirelli Cable Corp., 11 F. Supp. 2d 480, 497 (D. Del.
1998)). This is not such a case.
As to the second, third, and fourth factors, neither party has briefed those issues. I
therefore decline to find that any of those factors weighs in favor of awarding or denying

13

fees. See Haybarger v. Lawrence Cnty. Adult Probation & Parole, 667 F.3d 408, 413 n.3
(3d Cir. 2012) (“We ordinarily do not address issues that the parties have not briefed.”).
Because I find the first factor weighs against awarding fees and none of the other
factors weighs for or against, I deny the Fund’s claim for attorney’s fees.
V.

Conclusion
Miller’s Motion for Summary Judgment is denied. The Fund’s Motion for

Summary Judgment is denied as to its request for attorney’s fees, but granted in all other
respects. An appropriate order follows.

/s/ Gerald Austin McHugh
United States District Judge

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