Central States, Southeast & Southwest Areas Pension Fund v. Bomar National, Inc.

In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2472

Central States, Southeast and
Southwest Areas Pension Fund,
and Howard McDougall, Trustee,

Plaintiffs-Appellees,

v.

Bomar National, Inc., an Indiana
corporation, Hi-Way Dispatch, Inc.,
an Indiana corporation, and B&M
Properties, Inc., an Indiana corporation,

Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CV-0346--John F. Grady, Judge.

Argued January 11, 2001--Decided June 15, 2001

Before Flaum, Chief Judge, and Cudahy and
Posner, Circuit Judges.

Cudahy, Circuit Judge. This is another
effort by Central States, Southeast and
Southwest Areas Pension Fund to collect
interim withdrawal liability payments,
this time from Bomar National, Inc., an
Indiana corporation. This action was
brought in the Northern District of
Illinois, pursuant to the Employee
Retirement Income Security Act of 1974
(ERISA), as amended by the Multi-Employer
Pension Plan Amendments Act of 1980
(MPPAA), 29 U.S.C. sec. 1001 et seq. The
district court granted summary judgment
for the plaintiff Central States, and we
now affirm.

I.

Central States, not a stranger to
litigation, is a multi-employer pension
plan within the meaning of secs. 3(37)
and 4001(a)(3) of ERISA, 29 U.S.C.
secs. 1002(37) & 1301(a)(3).
Defendants Bomar National, Inc., Hi-Way
Dispatch, Inc. and B&M Properties, Inc.
are corporations organized and existing
under Indiana law, with their principal
places of business in Indiana. As of
March 28, 1998, Bomar owned 100 percent
of the stock of Hi-Way and B&M. Bomar,
Hi-Way and B&M are therefore a single
employer within the meaning of sec.
1301(b)(1) of ERISA; for the remainder of
this opinion, they will be referred to
collectively as "Hi-Way." Until its
permanent cessation of operations, Hi-Way
provided regulated, for-hire
transportation services in interstate and
intrastate commerce. Pursuant to several
collective bargaining agreements to which
it was a party, Hi-Way made pension
contributions to Central States for its
drivers and mechanics domiciled in
Marion, Indiana. The most recent of these
agreements expired on March 31, 1998.
According to Hi-Way, it began to meet
with union representatives to negotiate a
successor agreement as the expiration
date approached./1 During the
negotiations, Hi-Way advised the union
representatives that the license plates
of its trucks would expire on March 31,
and that because of the cost Hi-Way would
not be able to purchase new license
plates until a new labor agreement had
been negotiated. Without the new license
plates, Hi-Way would be forced to cease
operations. Hi-Way thus informed its
drivers that if no agreement was reached
before March 31, 1998, there could be a
"short shut down of operations" until the
vehicles were re-plated. No agreement
materialized. The drivers were instructed
by Hi-Way to return their equipment to
the Marion domicile by March 27. After
mid-April, when a scheduled negotiations
session was canceled, there were no
further communications between Hi-Way and
the union representatives until November.
At that time, a meeting was scheduled for
December 8, and after the meeting Hi-Way
ceased all operations permanently.

Central States determined that Hi-Way,
on or about March 28, 1998, had ceased
permanently to have an obligation to
contribute to the pension fund, thus
effecting a "complete withdrawal" within
the meaning of section 4203 of ERISA, 29
U.S.C. sec. 1383. It based this
determination on information from a union
representative that Hi-Way was no longer
in business and that its bargaining unit
employees were no longer employed. When
an employer withdraws from a multi-
employer plan, it incurs withdrawal
liability under the MPPAA. See 29 U.S.C.
secs. 1381, 1391. To collect what is
due, a pension fund must "determine the
amount of withdrawal liability owed by a
withdrawing employer, 29 U.S.C. secs.
1382, 1391, and send the employer a
notice and demand for payment of that
amount, 29 U.S.C. sec. 1399(b)(1)."
Central States, Southeast and Southwest
Areas Pension Fund v. Ditello, 974 F.2d
887, 888 (7th Cir. 1992). Thus, Central
States issued a notice of withdrawal
liability and demand for payment, which
Hi-Way received on about June 15, 1998.
Hi-Way claims that this action was
premature, because it had not withdrawn
as of June 1998. Rather, it had
temporarily ceased operations on March 28
due to the labor dispute, but did not
effect a complete withdrawal until
December 8, 1998, when it agreed to a
permanent cessation of operations during
its final meeting with union
representatives.

Central States filed a complaint in the
district court in January 1999, alleging
that Hi-Way incurred withdrawal liability
as of March 29, 1998. Claiming that Hi-
Way owed it delinquent interim withdrawal
liability payments, Central States sought
past due amounts, interest, attorneys’
fees, costs and liquidated damages, as
well as an order directing Hi-Way to make
all future interim withdrawal liability
payments. In response, Hi-Way claimed
that Central States had notified it of
its withdrawal liability prematurely, and
therefore was not entitled to receive
interim payments.

The district court concluded that, even
when an employer disputes the fact that
it had withdrawn at the time the pension
fund claims, it is still liable for
interim withdrawal liability payments.
The merits of the dispute regarding
withdrawal liability, including the date
of its incurrence, must be referred to
arbitration. See 29 U.S.C. sec.
1401(a)(1). But, the court concluded,
even when such an arbitration has not yet
occurred, the employer remains liable to
make interim payments. Of course, if the
arbitrator finds that there is no
withdrawal liability, interim payments
may be refunded. The court here ordered
Hi-Way to make all past due interim
withdrawal liability payments, all future
payments according to the schedule
determined by Central States, costs,
attorneys’ fees and liquidated damages.
Hi-Way appeals.

II.

A.

The MPPAA imposes withdrawal liability
on an employer withdrawing from a
multiemployer pension plan. See 29 U.S.C.
secs. 1381, 1391. Congress wanted "to
ensure that [withdrawing] employer[s]
would not leave a plan with vested
pension obligations that were only
partially funded." Central States,
Southeast and Southwest Areas Pension
Fund v. Bell Transit Co., 22 F.3d 706,
707 (7th Cir. 1994) (citing Robbins v.
Lady Baltimore Foods, Inc., 868 F.2d 258,
261 (7th Cir. 1989)). Thus, employers who
withdraw from pension plans must still
pay their proportionate share of the
"unfunded vested benefits." 29 U.S.C.
sec. 1381(a), (b)(1). This withdrawal
liability "ensures that ’the financial
burden of [the] employees’ vested pension
benefits will not be shifted to the other
employers in the plan and, ultimately, to
the Pension Benefit Guaranty Corporation,
which insures such benefits.’" Bell
Transit, 22 F.3d at 707 (quoting Central
States, Southeast and Southwest Areas
Pension Fund v. Slotky, 956 F.2d 1369,
1371 (7th Cir. 1992)). In order to
collect withdrawal liability, a pension
fund must "determine the amount of
withdrawal liability owed by a
withdrawing employer, 29 U.S.C. secs.
1382, 1391, and send the employer a
notice and demand for payment of that
amount, 29 U.S.C. sec. 1399(b)(1)."
Central States, Southeast and Southwest
Areas Pension Fund v. Ditello, 974 F.2d
887, 888 (7th Cir. 1992). Employers who
disagree with the assessment of
withdrawal liability may first ask the
plan to review its assessment, and then
may initiate arbitration. See 29 U.S.C.
secs. 1399(b)(2), 1401(a)(1). However,
the initiation of arbitration proceedings
"does not suspend the employer’s
obligation to pay in accordance with the
schedule of payments assessed by the
plan." Bell Transit, 22 F.2d at 707
(citing Jaspan v. Certified Industries,
Inc., 645 F.Supp. 998, 1004 (E.D.N.Y.
1985)). Rather, the MPPAA establishes a
"pay now, dispute later" scheme, under
which an employer must make interim
payments until liability is finally
determined. See Central States, Southeast
and Southwest Areas Pension Fund v.
Nitehawk Express, Inc., 223 F.3d 483,
495-96 (7th Cir. 2000). Specifically, the
MPPAA provides that "[w]ithdrawal
liability shall be payable in accordance
with the schedule set forth by the plan
sponsor . . . notwithstanding any request
for review or appeal of determinations of
the amount of such liability or
schedule." 29 U.S.C. sec. 1399(c)(2).
This provision serves the dual purpose of
reducing the risk that an employer will
not pay and of encouraging speedy
adjudication by requiring immediate
arbitration before the courts become
involved in the merits of the dispute.
See Trustees of Chicago Truck Drivers v.
Central Transport, Inc., 935 F.2d 114,
118-19 (7th Cir. 1991).

Hi-Way first challenges the claimed
timing of its withdrawal and asserts that
Central States may only assess liability
after Hi-Way’s withdrawal from the
pension fund. Hi-Way argues that
congressional intent and the statutory
language establish an intent that no
funds be collected from the employer
until withdrawal has taken place. Hi-Way
points to 29 U.S.C. sec. 1381(a), which
provides that "[i]f an employer withdraws
from a multiemployer plan in a complete
withdrawal or a partial withdrawal, then
the employer is liable to the plan in the
amount determined under this part to be
the withdrawal liability." Hi-Way
attempts to draw further support from
sec. 1382, which provides that the plan
sponsor shall determine the amount of,
issue notice of, and collect withdrawal
liability "[w]hen an employer withdraws
from a multiemployer plan." It is, of
course, true that withdrawal liability
does not arise until a withdrawal has
occurred, but whether and when there has
been a withdrawal is part of the merits,
which, under the MPPAA, must be resolved
in arbitration. Hi-Way contends that the
language of the act makes it clear that
there must be actual and uncontested
withdrawal from a plan before an employer
can issue any notice of withdrawal
liability--including interim liability.
This is incorrect. Such a policy would be
directly at odds with the mandate of the
MPPAA that, until the merits of a dispute
about withdrawal are decided, an employer
is liable for interim payments (subject,
of course, to refund if he prevails).
 Hi-Way’s next argument is unavailing for
similar reasons. Hi-Way contends that,
because it was involved in a labor
dispute during the relevant time period,
it had not yet withdrawn and was
therefore not liable for withdrawal
payments. The MPPAA does delineate
certain exceptions to the definition of
"complete withdrawal." For example, sec.
1398(2) of the act provides that an
employer shall not be considered to have
withdrawn "solely because . . . an
employer suspends contributions under the
plan during a labor dispute involving its
employees." But whether Hi-Way’s
situation fits within this exception is
not for this court to decide: "Any
dispute between an employer and the plan
sponsor of a multiemployer plan
concerning a determination made under
sections 1381 through 1399 of this title"
must be resolved through arbitration. 29
U.S.C. sec. 1401(a)(1). The question
before us is not whether Hi-Way met the
criteria for the labor dispute exception,
thus entitling it to refuse to make
withdrawal liability payments, but
whether, when arbitration of such a
matter is pending and unresolved, Hi-Way
must make interim withdrawal liability
payments. Arbitration has been sought,
and--if the arbitrator finds that Hi-Way
was involved in a labor dispute from
March 18, 1998 to December 8, so that it
fits within the sec. 1398(2) exception--
Hi-Way will be deemed not liable for
withdrawal payments during that time
period. But for now, Hi-Way must continue
to pay in accordance with the schedule of
payments provided by Central States. See
Bell Transit Co., 22 F.3d at 707. Our
holding in Bell Transit is clear--the
MPPAA dictates a "pay now, dispute later"
procedure in situations like the one
before us. See id.; see also Central
States, Southeast and Southwest Areas
Pension Fund v. Lady Baltimore Foods,
Inc., 960 F.2d 1339, 1341 (7th Cir. 1992)
("[T]he employer may not defer withdrawal
liability payments pending arbitration.
If he wins the arbitration he will get
back whatever he has paid but the rule is
pay first, arbitrate after.").

Hi-Way’s next step is to argue that
there are exceptions to the "pay now,
dispute later" procedure under the MPPAA.
One exception articulated by this court
is that we may excuse interim payments
pending arbitration if the employer can
show both that the pension fund lacks a
colorable claim and that the employer
will suffer severe financial hardship if
compelled to make interim payments. See
Trustees of the Chicago Truck Drivers,
Helpers & Warehouse Workers Union
(Indep.) Pension Fund v. Rentar Indus.,
Inc., 951 F.2d 152, 155 (7th Cir. 1991);
Central Transport, 935 F.2d at 119;
Robbins v. McNicholas Transportation Co.,
819 F.2d 682, 685 (7th Cir. 1987). Hi-Way
wisely chooses not to argue that its case
fits within this "frivolous claim" excep
tion. But it unwisely contends that a
second exception outlined in Central
States, Southeast & Southwest Areas
Pension Funds v. Hunt Truck Lines, Inc.,
204 F.3d 736 (7th Cir. 2000), governs.

In Hunt Truck Lines, we affirmed a
district court’s determination that it
could not order an employer to
makeinterim payments with respect to its
withdrawal liability. See 204 F.3d at
738-39, 742. There, unlike here, the
parties agreed that the pension fund’s
assessment of withdrawal liability was
premature. Both this court and the
district court concluded that, because
the parties agreed that the withdrawal
liability assessment was premature, the
court could decline to award the
plaintiff interim payments. Hunt Truck
Lines did not carve out a second
exception to the MPPAA, but rather
addressed a limited factual scenario in
which an award of interim liability
payments would be senseless: the parties
agreed that the notice was premature. The
parties in Hunt Truck Lines had agreed on
a withdrawal date, and the withdrawal
date was subsequent to the fund’s
issuance of notice and demand for
payment. Thus, we were able to "avoid
reading the MPPAA to allow funds to
arbitrarily assess withdrawal liability
without undercutting the statute’s
dispute resolution mechanism." Id. at
742. In other words, because it was
obvious that the assessment of liability
was premature, we were not undermining
the MPPAA by refusing to award interim
payments. We could not award payments
that the fund was--without doubt--not
entitled to collect.

Hi-Way would have us interpret Hunt
Truck Lines as fashioning a new exception
to the "pay now, dispute later" scheme of
the MPPAA. But the "new" exception, based
on a "premature claim," would be exactly
the same as the "frivolous claim"
exception. The claim in Hunt Truck Lines
was not just premature; it was also
frivolous. This court was careful to note
that "if the fund could not honestly
plead that it assessed the employer’s
liability after withdrawal, it could not
enforce an assessment that was not
envisioned by the statute." Id. at 742.
Thus, Hunt Truck Lines represents the
very unique situation in which the
pension fund has conceded that its
assessment of liability is premature. The
pension fund has not made such a
concession here. Thus, even if we were to
create a Hunt Truck Lines "premature
claim" exception to complement the
"frivolous claim" exception (which we
decline to do), Hi-Way would not
fitwithin it.

Hi-Way makes a feeble effort to conform
with Hunt Truck Lines’ narrow factual
scenario by arguing that the pension fund
admitted, through procedural errors, that
Hi-Way had not withdrawn at the end of
March 1998.

First, Hi-Way argues that Central States
effectively admitted, in its response to
Hi-Way’s statement of material facts,
that the withdrawal date was December 8,
1998. The background for this is that the
local rules of the district court require
that parties moving for summary judgment
serve and file "a statement of material
facts as to which the moving party
contends there is no genuine issue and
that the moving party is entitled to a
judgment as a matter of law." Local Rule
56.1(a)(3). The opposing party must then
file a response containing any
disagreement, as well as a reference to
evidence supporting that disagreement.
Local Rule 56(b)(3)(A). Rule
56.1(b)(3)(B) provides that "[a]ll
material facts set forth in the statement
required of the moving party will be
deemed to be admitted unless controverted
by the statement of the opposing party."
In response to paragraphs 23-28 and 30-41
of Hi-Way’s statement of material facts,
which are intended to support Hi-Way’s
argument regarding the timing of its
withdrawal, Central States asserted that
the facts recited were irrelevant and
were unknown to Central States because
discovery on those issues had not
commenced in the arbitration proceeding.
These facts detailed the status of Hi-
Way’s labor negotiations, such as
communications between Hi-Way and the
union representatives; communications
between Hi-Way and its drivers; Hi-Way’s
assessment of the progress of the
negotiations; and the scheduling of
meetings among the parties. Central
States’ failure to flatly deny the
existence of these facts, Hi-Way argues,
constitutes an admission that Central
States’ withdrawal liability assessment
was premature.

This argument is unconvincing. Central
States’ reply does not constitute an
admission. Local Rule 56.1(a)(3) of the
Northern District of Illinois requires
moving parties to file "a statement of
material facts as to which the moving
party contends there is no genuine issue
and that entitle the moving party to a
judgment as a matter of law." The
question at issue is not when Hi-Way
withdrew, but rather whether there is a
dispute as to when it withdrew. Central
States’ response asserting that the facts
were irrelevant is sufficient because the
local rule requires a moving party
tosubmit material facts. In this motion
for summary judgment while arbitration
was pending, the only information
material to the assessment of interim
payments was whether the parties
disagreed as to the withdrawal date. The
facts asserted in paragraphs 23-41 of Hi-
Way’s filing go to the merits, which must
be resolved by the arbitrator and not by
the district court. Because the facts
cited by Hi-Way were not material,
Central States’ failure to deny them, but
instead to assert their irrelevance, was
not an admission. To characterize Central
States’ response in this manner as an
admission would be ludicrous. Hi-Way’s
argument is therefore without merit.

Hi-Way’s second effort to create an
agreement on the withdrawal date is
premised on an argument that Central
States’ denial of paragraph 29 of Hi-
Way’s statement of material facts was
legally insufficient, and therefore para
graph 29 is admitted. Paragraph 29 reads:

The parties continued negotiations after
March 28, 1998. Hi-Way did not
permanently cease its operations and did
not permanently cease to have an
obligation to contribute to the Pension
Fund on March 28, 1998.

The denial contained in Central States’
response, Hi-Way asserts, is supported
only by a letter that constitutes
inadmissible hearsay. The letter in
question was sent by Central States to
the local union confirming that Hi-Way
had ceased operations as of March 29,
1998. It summarized the statements of a
union representative to that effect.
Hearsay, of course, is "a statement,
other than one made by the declarant
while testifying at the trial or hearing,
offered in evidence to prove the truth of
the matter asserted." Fed. R. Evid.
801(c). And Central States correctly
points out that the issue here is not
whether Hi-Way actually withdrew in March
1998, but whether Central States could
"honestly plead" that it believed a
withdrawal had occurred. See Hunt Truck
Lines, 204 F.3d at 742. Thus, the letter
and the statement within it are not
offered for the truth of the matter
asserted, but rather to demonstrate an
honest disagreement on the face of the
pleadings as to the actual date of Hi-
Way’s withdrawal. That is all that is
required.

Finally, Hi-Way asserts that Central
States’ response to paragraph 19 of its
statement of material facts constitutes
an admission. Paragraph 19 states: "Until
its permanent cessation of operations on
December 8, 1998, Hi-Way provided
regulated, for-hire transportation in
interstate and intrastate commerce." In
its response, Central States asserts that
the facts in that paragraph are not
relevant because they relate to the
propriety of the withdrawal liability
assessment--a matter for arbitration. It
goes on to state: "Nevertheless, the
Pension Fund agrees for the purposes of
this motion [for summary judgment]." Hi-
Way claims that this sentence constitutes
a binding admission that Central States’
liability assessment was premature. We do
not agree. It has been clear throughout
this litigation that Central States
believes--with apparent good reason--that
Hi-Way effected a complete withdrawal in
March 1998. We decline to stretch the
fund’s words in this document to construe
this as a binding admission that
withdrawal did not occur until December.
First, paragraph 19 says nothing about
withdrawal. Second, the words Hi-Way is
seizing upon, "[u]ntil its permanent
cessation of operations on December 8,"
were immaterial in the context of a
summary judgment motion because it was
inappropriate to determine a withdrawal
date at that point in the judicial
proceedings.

In Hunt Truck Lines, we noted that
decisions regarding interim withdrawal
liability payments potentially create a
difficult policy dilemma:

If we find for [the pension fund] we
would sanction a scenario whereby a
[multiemployer pension plan] could
declare that an employer had withdrawn
because the Cubs lost, and if the
employer refused to begin interim
payments while it challenged the
assessment, a court would be obliged to
force it to pay liquidated damages and
make interim liability payments that
could not be recovered until the
arbitration was complete. If we find for
[the employer] it would mean that every
time an employer withdraws from a fund,
it could frustrate the purpose of the
MPPAA’s "pay now, dispute later" system
by forcing a court to address the merits
of the trustee’s assessment of the
withdrawal date before interim liability
kicks in.

204 F.3d at 742. In Hunt Truck Lines, we
did not have to address these policy
implications because the answer was
clear: the assessment of withdrawal
liability was undisputedly premature, and
therefore any fund claim to withdrawal
liability would be frivolous. In other
words, Central States could not "honestly
plead" that it deserved payments. Here,
Central States could honestly plead that
it deserved payments. But still, the
answer is perfectly clear; this court has
considered the policy implications and
addressed them by articulating the
"frivolous claim" exception.

Because the propriety of Central States’
assessment is in dispute, Hi-Way’s
argument is directly addressed by Central
Transport, which allows courts to deny
interim payments for frivolous claims.
Without Central Transport’s "frivolous
claim" exception, unions could abuse the
"pay now, dispute later" scheme of the
MPPAA. They could do this by threatening
to force employers to cease all
operations, automatically triggering
interim withdrawal liability until an
arbitrator determines that the scenario
falls within the labor dispute exception.
Allowing courts to deny frivolous claims
to withdrawal liability works to prevent
this. But in order to avoid having the
frivolous claim exception gut the MPPAA
"pay now, dispute later" scheme, this
court has strictly limited the situation
in which an employer could avoid interim
liability: the employer must establish 1)
that the pension fund’s claim is
frivolous and 2) that imposing interim
liability would cause irreparable harm.
See Rentar, 951 F.2d at 155 (citing
Central Transport, 935 F.2d at 119). It
is a difficult standard to meet, and it
is meant to be that way.

Under Central Transport and Rentar, Hi-
Way clearly loses. If Hi-Way established
a concession by Central States that the
withdrawal date was December 8 (and it
most certainly did not), that would
demonstrate that Central States has no
colorable claim to the withdrawal
liability payments. However, Hi-Way would
still fail to meet the second prong of
the "frivolous claim" exception. Hi-Way
would still have to show that it would
suffer severe financial hardship if
compelled to make interim payments, and
it has not even attempted to do this. See
Rentar, 951 F.2d at 154-55.

B.

In its May 8, 2000 judgment order, the
district court awarded Central States
"post-judgment interest on the entire
judgment balance and on the future
payments to be made at an annualized
interest rate equal to two percent (2%)
plus the prime interest rate established
by Chase Manhattan Bank (New York, New
York) for the fifteenth (15th) day of the
month for which interest is charged and
shall be compounded annually as set forth
in the Central States Pension Plan and
Trust Agreement." Hi-Way contends that
this award was in error because 28 U.S.C.
sec. 1961, not the pension trust
agreement, should govern the calculation
of post-judgment interest. Section 1961
provides that "interest shall be
calculated . . . at a rate equal to the
coupon issue yield equivalent (as
determined by the Secretary of the
Treasury) of the average accepted auction
price for the last auction of fifty-two
week United States Treasury bills settled
immediately prior to the date of the
judgment."

Hi-Way maintains that Central States has
not shown that Hi-Way agreed to the rate
of interest provided for in the pension
trust agreement. It argues that, because
Hi-Way was not a party to the trust
agreement that contains the provision
specifying the interest rate, it is not
bound by it. This is incorrect. Hi-Way
was a party to the collective bargaining
agreement, the terms of which bound it to
pay pension contributions on behalf of
its covered employees. The labor
agreement clearly states that Hi-Way
agrees to ratify all actions taken by the
trustees of the fund, and the pension
fund’s trust agreement provides the
interest rate. Thus, article 61 of the
collective bargaining agreement provides
in part:

By the execution of the Agreement, the
Employer authorizes the appropriate
Employers’ Associations to enter into
appropriate trust agreements necessary
for the administration of such Fund, and
to designate the Employer Trustees under
such agreement, hereby waiving all notice
thereof and ratifying all actions already
taken or to be taken by such Trustees
within the scope of their authority.

Hi-Way argues that employers are not
automatically bound to the terms of a
trust agreement by virtue of their
participation in a fund. Absent an
agreement, this might be true, but in
this case there was an agreement. Hi-Way
cites Jaspan v. Glover Bottled Gas Corp.,
in which the Second Circuit found that
the employer had not agreed to be bound
by the trust agreement. 80 F.3d 38 (2d
Cir. 1996). As Central States points out,
the court noted there that "had the
parties intended to bind [the employer]
to [the trust agreement’s] terms, they
could easily have done so by having [the
employer] sign the Agreement or by
referencing it in the collective
bargaining agreements." Id. at 40. Here,
of course, the trust agreement was
specifically referenced. Thus, we find
that Hi-Way is bound by the terms of the
trust agreement. It is well established
that parties can agree to an interest
rate other than the standard one
contained in 28 U.S.C. sec. 1961. See
Hymel v. UNC, Inc., 994 F.2d 260, 265
(5th Cir. 1993) (quoting In re Lift
Equipment Service, Inc., 816 F.2d 1013,
1018 (5th Cir. 1987)); see also Ocasek v.
Manville Corp. Asbestos Disease
Compensation Fund, 956 F.2d 152, 154 (7th
Cir. 1992) (holding that bankruptcy plan
of reorganization, rather than sec. 1961,
controlled the setting of the interest
rate). We find that Hi-Way has made such
an agreement.

III.

For the foregoing reasons, the judgment
of the district court is

Affirmed.

FOOTNOTE

/1 The facts of the "labor dispute" are recounted
from Hi-Way’s allegations in the district court.
Central States argued that the facts were not
relevant, and that it had no knowledge of them
because discovery had not yet commenced in the
pending arbitration proceeding.