In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4362
AUTOMOBILE MECHANICS LOCAL 701
WELFARE AND PENSION FUNDS,
Plaintiff-Appellant,
v.
VANGUARD CAR RENTAL USA, INC. d/b/a
NATIONAL CAR RENTAL & ALAMO,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 1719—Charles R. Norgle, Sr., Judge.
____________
ARGUED MAY 21, 2007—DECIDED SEPTEMBER 18, 2007
____________
Before RIPPLE, WOOD, and EVANS, Circuit Judges.
WOOD, Circuit Judge. The Automobile Mechanics
Local 701 Welfare and Pension Funds (“the Funds”)
administer welfare and pension benefits for the members
of Local 701. As part of its collective bargaining agreement
(“CBA”) with the union, Vanguard Car Rental USA d/b/a
National Car Rental and Alamo (“Vanguard”), through its
predecessor in interest, agreed to make weekly payments
to the Funds for the benefit of each regular employee
covered by the CBA. Vanguard does not deny this obliga-
tion, and it has not refused to make payments during the
period in which this dispute has occurred. It is the contri-
2 No. 06-4362
bution rate instead that is the bone of contention here. The
Funds take the position that Vanguard was required to
pay the increased contribution rate authorized by the
Funds’ Board of Trustees and made effective on August 1,
2005; Vanguard says that it owes only the last rate
authorized in the CBA. To recoup the monies allegedly
due, the Funds filed suit in federal court under § 502 of the
Employee Retirement Security Act of 1974 (“ERISA”), 29
U.S.C. § 1132, on March 29, 2006, arguing that certain
agreements signed between Vanguard and the Funds
gave the Board of Trustees the authority to raise the
contribution rates. The parties filed cross-motions for
summary judgment. Rather than addressing those mo-
tions, however, the district court dismissed the suit sua
sponte, because it concluded that the dispute had to be
arbitrated.
We agree with both parties that this dismissal by the
district court was improper. Enforcement of a forum
selection clause (including an arbitration clause) is not
jurisdictional; it is a waivable defense that Vanguard, in
fact, waived. Although the district court did not ad-
dress the summary judgment motions, they are properly
before this court. Because the dispositive issue is one of
contract interpretation, our review is de novo, and nothing
prevents us from addressing this lone question, we hold
that Vanguard is entitled to summary judgment. The
agreements do not give the Funds the authority to raise
the contribution rates until a “renewed term” has been
ushered in by the signing of a new CBA.
I
The facts underlying this case are not in dispute. On
June 23, 2003, Vanguard’s predecessor in interest entered
into a CBA with Local 701. That CBA expired on April 25,
2004. It obligated Vanguard to pay money into the Local’s
No. 06-4362 3
pension and welfare funds on behalf of its employees.
Article 7 of the CBA, which deals with welfare benefits,
provided:
The Employer shall pay the sum of $124 per week
for each regular employee covered by this Agreement
who performs any work in such week into the Automo-
bile Mechanics Union Local 701 Union & Industry
Welfare Fund for the payment of health and welfare
benefits as determined by the Board of Trustees. . . .
The Fund shall in all respects be administered in
accordance with the Trust Agreement drawn.
Referring to welfare benefits, Article 7(D) adds that “[t]he
obligation to make the above contribution shall continue
during periods when the collective bargaining agreement
is being negotiated . . . .” Article 8, the provision for the
Pension Fund, is similar: “The Employer shall be obligated
to contribute the sum of $48.00 per week for each employee
covered by this [A]greement to the Pension Fund of the
Automobile Mechanics Union Local 701. . . . The Fund
shall in all respects be administered in accordance
with the Trust Agreement drawn.” Both Article 7(D) and
Article 8(D) obligate Vanguard to make the contribution
“during periods when the collective bargaining agree-
ment is being negotiated . . . .”
Following the expiration of the CBA on April 2, 2004, the
parties entered into extension agreements that prolonged
the CBA through January 2, 2005. While the parties
have not extended the term of the CBA further since that
date, they have continued to operate under its terms
during this “status quo” period as provided by Articles 7(D)
and 8(D).
On June 23, 2004, the same date that Vanguard signed
the CBA with the Union, it also entered into participation
agreements with the Pension Fund and the Welfare Fund.
Two sections of these agreements are relevant here. (A
4 No. 06-4362
separate agreement was signed with each fund, but they
conform in almost every respect. We quote from the
agreement with the Welfare Fund.) Paragraph 5 deals
with the automatic renewal of the participation agreement:
This Agreement shall remain in full force and effect for
the full term of the current Collective Bargaining
Agreement between the Employer or area wide Em-
ployers and the Union and shall be automatically
renewed from time to time for terms coterminous
with those of the aforementioned Collective Bargain-
ing Agreements. The rate at which contributions are
to be made during any renewed term shall be that set
by the Board of Trustees.
Paragraph 8 addresses the termination of the agreement
by the Employer:
An Employer desiring to terminate this Agreement
must notify the Fund Office sixty (60) days’ [sic] prior
to the termination date of the existing Collective
Bargaining Agreement. If the Employer fails to give
timely notice to the Trustees the Employer shall be
bound to the provisions of this Agreement for the
period of the next Collective Bargaining Agreement
and thereafter until proper notice is given but in no
event less than three years unless terminated by the
Trustees. The rate at which contributions are to be
made during any renewed term shall be that set by
the Board of Trustees.
On August 1, 2005, the Board of Trustees of the Funds
informed Vanguard that the contribution rates had been
increased to $155 for the Welfare Fund and to $59 for the
Pension Fund. Although Vanguard has continued to pay
the $124 and $48 per week rates that it paid prior to
August 1, it has refused to contribute at the increased
rate. As a result, the Funds filed this suit, alleging a
violation of ERISA, seeking an accounting, and requesting
No. 06-4362 5
a judgment and an injunction requiring Vanguard to pay
the increased contribution rates.
Vanguard filed a motion for summary judgment on June
28, 2006, and the Funds did the same on August 11, 2006.
Rather than addressing those motions, however, the
district court seized upon the arbitration clause in Article
18 of the CBA signed between the union (which is not a
party to this case) and the Funds. Noting the national
policy in favor of arbitration and finding the dispute to
be within the terms of Article 18A of the CBA, the dis-
trict court dismissed the suit, citing FED. R. CIV. P. 12(b)(3)
(improper venue). The Funds brought this timely appeal.
II
A. Right of Action
Vanguard argues that we lack subject-matter jurisdic-
tion over the Funds’ suit. That cannot be right, unless the
suit is so frivolous that it does not engage the power of the
court. See Steel Co. v. Citizens for a Better Environment,
523 U.S. 83, 89 (1998), citing Bell v. Hood, 327 U.S. 678,
682-83 (1946). It is possible, however, that these parties
might not have a right of action under the statute; if so,
their suit is barred at the threshold. Two provisions of
ERISA, §§ 502 and 515, 29 U.S.C. §§ 1132 and 1145, are
relevant here. Section 1145 supplies the substantive
right that the Funds seek to enforce:
Every employer who is obligated to make contributions
to a multiemployer plan under the terms of the plan or
under the terms of a collectively bargained agreement
shall, to the extent not inconsistent with law, make
such contributions in accordance with the terms and
conditions of such plan or such agreement.
Section 1132(e) complements § 1145 by authorizing cer-
tain parties to enforce the substantive right. It empowers
6 No. 06-4362
various parties to bring actions under ERISA, including
the Secretary of Labor or a participant, beneficiary, or
fiduciary of a plan. The plaintiff Funds are employee
benefit plans, to which § 1132(d)(1) gives the right to “sue
or be sued under [ERISA] as an entity.” We have found
that such employee benefit plans may bring suit in fed-
eral court under § 1332(e). See Peoria Union Stock Yards
Co. Retirement Plan v. Penn Mutual Life Ins. Co., 698
F.2d 320, 326 (7th Cir. 1983); see also Laborers’ Pension
Fund v. Blackmore Sewer Construction, Inc., 298 F.3d
600 (7th Cir. 2002) (affirming result in suit brought by
fund for unpaid monies under § 1145 where claim was
alleged under § 1132); Central States Southeast and
Southwest Areas Pension Fund v. Kroger Co., 226 F.3d
903 (7th Cir. 2000) (same).
Notwithstanding this apparent source of authority to
sue, Vanguard submits that the Funds’ action has been
foreclosed by Laborers Health & Welfare Trust Fund for
Northern California v. Advanced Lightweight Concrete Co.,
Inc., 484 U.S. 539 (1988). There, an employees’ trust fund
wanted to bring an action under § 515 of ERISA to recover
contributions to employee benefit plans that the employer
refused to pay after the expiration of the CBA that gov-
erned the contributions. The duty to continue making post-
contract contributions during a status quo period that
the trust fund sought to enforce derives from the duty to
bargain in good faith under § 8(a)(5) of the National
Labor Relations Act: “The duty to bargain and to refrain
from instituting unilateral changes in wages and working
conditions under section 8(a)(5) normally outlives the
parties’ CBA. An employer is required to ‘maintain the
status quo after the expiration of a collective bargaining
agreement until a new agreement is reached or until the
parties bargain in good faith to impasse.’ ” General Service
Employees Union v. NLRB, 230 F.3d 909, 913 (7th Cir.
2000) (quoting NLRB v. Emsing’s Supermarket, 872 F.2d
No. 06-4362 7
1279, 1285 (7th Cir. 1989) (quotations omitted)); see also
NLRB v. Katz, 369 U.S. 736 (1962). In Advanced Light-
weight Concrete, the Supreme Court held that § 515 does
not give rise to any federal right to have an employer
make post-contract contributions while negotiations are
ongoing; the question there was whether a charge that a
refusal to make pension contributions during a status
quo period violated the NLRA was exclusively within the
jurisdiction of the National Labor Relations Board. See
484 U.S. at 546-48.
Questions involving an employer’s “promised obligations”
to a employee benefit plan—that is, their obligations
“under the terms of the plan or under the terms of a
collectively bargained agreement”—are not excluded from
scope of the statute, nor are they matters within the
exclusive jurisdiction of the NLRB. Unlike the plaintiff
trust fund in Advanced Lightweight Concrete, the Funds
here do not rely on any alleged statutory duty Vanguard
might have to continue contributing during the post-
contract status quo period. Instead, the Funds claim
only that Vanguard has violated a contractual duty
stemming from the participation agreements. Because
this contract relates to a welfare benefit plan governed
by ERISA, the lawsuit falls within the federal question
jurisdiction of the court.
B. Forum Selection Clause
To everyone’s surprise, the district court dismissed this
case for improper venue, based on the existence of the
arbitration clause. It raised that issue on its own and
resolved the case on this basis without any briefing
from the parties. Stranger yet, it did so after Vanguard
had already waived whatever right to arbitration it might
have had. We review the district court’s dismissal of the
case on this ground de novo. See Continental Casualty Co.
8 No. 06-4362
v. American National Ins. Co., 417 F.3d 727, 733 (7th
Cir. 2005). Both parties submit that the dismissal was
improper.
It is not entirely clear whether a motion seeking dis-
missal based on a forum selection clause, including an
arbitration clause, is better conceptualized as an objection
to venue, and hence properly raised under Rule 12(b)(3), or
as a failure to state a claim, and thus properly raised
under Rule 12(b)(6). See generally 5B Charles A. Wright
and Arthur R. Miller, Federal Practice & Procedure § 1352
at 318-19 (3d ed. 2004). Wright and Miller observe,
however, that “most of the decided cases use [Rule
12(b)(3)] as the basis” for deciding such a motion. Id. at
319. This court has followed the majority rule. See Conti-
nental Ins. Co. v. M/V Orsula, 354 F.3d 603, 606-07 (7th
Cir. 2003). This is consistent with our view that the
choice of an arbitral forum can be waived early in the
proceedings, and generally is waived once the party who
later wants arbitration chooses a judicial forum. See
Grumhaus v. Comerica, Inc., 223 F.3d 648, 650-51 (7th Cir.
2000); Cabinetree of Wis., Inc. v. Kraftmaid Cabinetry,
Inc., 50 F.3d 388, 390 (7th Cir. 1995).
Venue is primarily a “matter of convenience of litigants
and witnesses.” Firstar Bank, N.A. v. Faul, 253 F.3d 982,
990 (7th Cir. 2001) (quoting Denver & Rio Grande W. R.R.
Co. v. Brotherhood of R.R. Trainmen, 387 U.S. 556, 560
(1967)) (citations omitted). As a result, an objection to
venue “can be waived or forfeited.” American Patriot Ins.
Agency, Inc. v. Mutual Risk Management, Ltd., 364 F.3d
884, 887 (7th Cir. 2004); see also 14D Charles A. Wright,
Arthur R. Miller, and Edward H. Cooper, Federal Practice
& Procedure § 3826 (3d ed. 1998). Indeed, FED. R. CIV. P.
12(h)(1) provides that improper venue is waived as a
ground of dismissal when not timely raised. Forum
selection clauses are similar; they represent an ex ante
No. 06-4362 9
determination by the parties themselves of the place that
will be the most convenient for any litigation that may
come along. Arbitration clauses, the Supreme Court has
held, are a species of forum selection clause. See Vimar
Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S.
528, 533-34 (1995).
District courts should not, as a matter of general prac-
tice, dismiss sua sponte either for improper venue or for
failure to follow a forum selection clause. See 14D Wright,
Miller, and Cooper, Fed. Prac. & Proc. § 3826 (“[B]ecause
of the waiver principle and the personal nature of the
defense, it generally (but not always) is thought inappro-
priate for the district court to dismiss an action on its
own motion for improper venue if there has been no
objection from the party for whose benefit the privilege
exists.”). In the analogous area of venue, our sister cir-
cuits have found sua sponte dismissal to be appropriate
only under limited circumstances. See Algodonera de las
Cabezas, S.A. v. American Suisse Capital, Inc., 432 F.3d
1343, 1345-46 (11th Cir. 2005) (holding that district court
must give parties the opportunity to present views,
including willingness to waive venue, before dismissing);
Janis v. Ashcroft, 348 F.3d 491, 493 (6th Cir. 2003)
(holding that sua sponte dismissal is inappropriate);
Gomez v. USAA Federal Savings Bank, 171 F.3d 794, 796
(2d Cir. 1999) (holding sua sponte dismissal to be appro-
priate only when extraordinary circumstances favor
allowing the question to be raised on the court’s own
motion); Stjernholm v. Peterson, 83 F.3d 347, 349 (10th
Cir. 1996) (holding that sua sponte dismissal not allowed
after waiver under FED. R. CIV. P. 12(h)(1)); Costlow v.
Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986) (holding
that sua sponte dismissal is appropriate only where no
responsive pleading has yet been filed).
Dismissal on the court’s own initiative is particularly ill-
conceived as an effort to enforce a contractual arbitra-
10 No. 06-4362
tion clause. The district court thought that the arbitra-
tion clause cut the other way. It commented that “because
the parties have previously agreed to arbitration, they
should not now be allowed to turn their back on that
agreement, in favor of litigation in the federal court.” This
assumes, of course, that the parties who are before the
court are the ones who have agreed to arbitrate their
disputes. The district court apparently took no notice
of the fact that the participation agreements between
Vanguard and the Funds do not contain arbitration
agreements; the arbitration agreement is in the CBA
between Vanguard and Local 701. Arbitration, the Su-
preme Court constantly reminds us, is a creature of
agreement. See, e.g., First Options of Chicago, Inc. v.
Kaplan, 514 U.S. 938, 942-43 (1995). The court was thus
mistaken when it assumed that the dispute before it
was covered by an arbitration agreement.
Even if the agreement to arbitrate between the employer
and the union somehow carried over to the Funds, and we
do not see how it could, there is another problem with the
court’s conclusion. Like many other contractual rights, “[a]
contractual right to arbitrate may be waived, either
expressly or implicitly.” Grumhaus v. Comerica Securities,
Inc., 223 F.3d 648, 650 (7th Cir. 2000). As they may do
with other contractual clauses, litigants may turn their
back on their right to enforce an agreement to arbitrate.
The district court offered no reason why it had either the
right or the duty to reject such a waiver. In all of the
cases it cited in support of its dismissal, one party had
moved to enforce the arbitration agreement and dismiss
for lack of venue.
Undoubtedly, the reason why Vanguard did not file
any motion asserting a right to arbitrate is because it
had no right under its agreements with the Funds. Had
it wished to do so, however, it had ample opportunity. It
filed a response to the complaint in which it did not deny
No. 06-4362 11
plaintiffs’ allegation that venue was proper in the North-
ern District of Illinois, saying instead that “[d]efendant
neither admits nor denies the allegations and legal
conclusions concerning venue, for lack of sufficient informa-
tion.” Although it made no motion to dismiss, Vanguard’s
motion for summary judgment, which said nothing about
venue or arbitration, was an implicit waiver of any argu-
ment for dismissing on either of those grounds. Finally,
before this court Vanguard has explicitly waived the
forum selection clause as a defense. We too conclude that
this was not an appropriate ground on which to dismiss
this case.
III
The question remains what we should do at this point.
One option is to remand the case for further proceed-
ings before the district court, and the other is to decide
the cross-motions for summary judgment as a matter of
first impression. Federal courts of appeals have the
authority under 28 U.S.C. § 2106 to provide relief when so
doing would “be just under the circumstances.” This
includes the prerogative to decide motions for summary
judgment as a matter of first impression. See Swaback
v. American Information Technologies Corp., 103 F.3d 535,
544 (7th Cir. 1996). Nonetheless, “[i]n most instances . . .
such a decision is best made by the district court; we
would rarely find it appropriate to direct the entry of
summary judgment.” International Financial Services
Corp. v. Chromas Technologies Canada, Inc., 356 F.3d 731,
740 (7th Cir. 2004) (quoting Turner v. J.V.D.B. Assocs.,
Inc., 330 F.3d 991, 998 (7th Cir. 2003)).
“Rarely” does not mean “never,” though. This case is
unlike either International Financial Services or Turner.
In the former, we remanded the case to the district court
based on our conclusion that “[w]hether veil-piercing is
12 No. 06-4362
appropriate depends on a host of considerations that this
court is ill-positioned to weigh as a matter of first im-
pression.” 356 F.3d at 740. In contrast, a decision about
the meaning of a provision in a contractual agreement
between two parties is precisely the type of legal question
with which appellate courts commonly deal. Moreover, we
have no qualms about the state of the record, which was
the problem in Turner. The motions before us were fully
briefed, there are no disputed material facts, and all
relevant documents are before this court. Remanding
this case to the district court would therefore not accom-
plish anything useful. See Swaback, 103 F.3d at 544
(directing the district court to enter summary judgment
on the ground that “this case presents no genuine issue
of material fact, and both parties have briefed and re-
sponded to the cross-motions for summary judgment,
and . . . substantial further proceedings in the district
court would be an inefficient use of judicial resources”).
We review the cross-motions for summary judgment
under the same standard as we would had the district
court addressed them, “construing all facts, and drawing
all reasonable inferences from those facts, in favor of . . .
the non-moving party.” Hall v. Bodine Elec. Co., 276 F.3d
345, 352 (7th Cir. 2002). Although the parties have not
stipulated to the facts, there are essentially no disputed
facts. The only quarrel revolves around the meaning of
the participation agreements. As a result, we need decide
only whether either party “is entitled to a judgment as
a matter of law.” FED. R. CIV. P. 56(c).
If the participation agreements obligate Vanguard to
contribute at the increased rate, then the Funds are
entitled to judgment; if not, then Vanguard should prevail.
As a matter of ERISA law, the obligations enforceable
under § 1145 include those “under the terms of [an em-
ployee benefit] plan or under the terms of a collectively
bargained agreement,” and the contributions agreed to
No. 06-4362 13
thereunder shall be made “in accordance with the terms
and conditions of such plan or such agreement.” As the
quoted language suggests, these obligations may stem
from an agreement other than the CBA. In fact, it is not
even necessary that a CBA exist for an employer to incur
such obligations. See Central States, Southeast and
Southwest Areas Pension Fund v. Gerber Truck Service,
Inc., 870 F.2d 1148, 1153 (7th Cir. 1989) (en banc)
(“Whether or not the plans are obligated to Gerber Truck’s
workers, nothing in ERISA makes the obligation to
contribute depend on the existence of a valid collective
bargaining agreement . . . .”). A participation agreement
is thus one potential source of a contribution obligation.
As we noted at the outset, the dispute here is a narrow
one: how much does Vanguard have to pay the Funds
during the status quo, post-contractual period? There
are only two options: the old amount of money established
by the expired CBA, or any new amount of money the
Funds decide to authorize. The Board of Trustees of the
Funds is the body that sets contribution rates. Paragraphs
5 and 8 of the participation agreement provide as fol-
lows: “The rate at which contributions are to be made
during any renewed term shall be that set by the Board of
Trustees.” The question thus can be narrowed further to
the meaning of the term “renewed term,” and whether
the period following the expiration of one CBA and prior
to the signing of a new CBA (the status quo period)
qualifies as a “renewed term.”
Two paragraphs in each agreement are relevant to our
resolution of that question: ¶ 5, which discusses auto-
matic renewal, and ¶ 8, which covers termination of the
agreement. Paragraph 5 ties the term of the agreement to
the term of the CBA, providing that it will be “automati-
cally renewed from time to time for terms coterminous
with those of the aforementioned Collective Bargaining
Agreements.” Paragraph 8 similarly uses the CBA as the
14 No. 06-4362
benchmark for termination, requiring a terminating
employer to notify the fund “sixty (60) days’ [sic] prior to
the termination date of the existing Collective Bargaining
Agreement.” A failure to give timely notice results in the
extension of the participation agreement: “If the Employer
fails to give timely notice to the Trustees, the Employer
shall be bound to the provisions of this Agreement for
the period of the next Collective Bargaining Agreement
and thereafter until proper notice is given but in no event
less than three years unless terminated by the Trustees.”
The Funds argue that a “renewed term,” during which
the Board of Trustees is free to set new contribution rates
on its own, commences with the lapsing of the prior CBA.
In advancing their reading of the agreement, the Funds
divorce the adoption of a new CBA from the automatic
renewal of the agreements. There is, after all, no explicit
language in ¶ 5 tying automatic renewal of the agree-
ment to the conclusion of a new CBA. The terms of each
are merely made coterminous. There is thus no necessary
link between the automatic renewal of the contribution
obligation and the entry of a new CBA into force. The
Funds argue that this point becomes clear upon examina-
tion of ¶ 8, which provides that an employer who fails to
give proper notification of its desire to terminate could be
bound to the provisions of the agreement for three years,
even if no new CBA was ever signed. The Funds claim
that such a period would be a renewed term, in spite of
the fact that there is no replacement CBA. This means,
they conclude, that a “renewed” term commences with the
lapsing of the term of the last CBA. If that is true, then
the Board of Trustees has the power to fix new contribu-
tion rates unilaterally as soon as the old CBA expires.
In contrast, Vanguard focuses on the language in ¶ 5
that provides for automatic renewal of the agreement “for
terms coterminous with the CBA.” This language, it
argues, indicates that a renewed term is triggered by the
No. 06-4362 15
adoption of a new CBA. This tie between the adoption of
a new CBA and the renewal of the agreement for a new
term is reiterated in ¶ 8, which binds the employer to the
terms of the agreement for the period of the next CBA,
in the event that the employer fails to give proper notice
that it wishes to terminate the agreement.
While the contract is not the most artfully drafted
document we have ever seen, it is nonetheless possible to
interpret it without recourse to any extrinsic materials.
For several reasons, we conclude that, as drafted, the
“status quo” period is not part of a “renewed term.” First,
the Funds offer no explanation for how a renewed term
could be coterminous with a new CBA if the renewed term
does not begin at the same time as the CBA. In order
for that portion of the agreement to have any mean-
ing at all, the renewed term must be triggered by the
passage of the new CBA. Second, the fact that failure
to give notice means that an agreement cannot be termi-
nated for three years even if no new CBA is ever passed
does not compel the conclusion that the term following
the expiration of the old CBA is a renewed term. Para-
graph 8 never identifies this period as a “renewed term.”
It simply reiterates that during a renewed term, the
Trustees may set the rates. (That paragraph’s reference to
“the period of the next [CBA]” is, in contrast, probably a
reference to the renewed term.) The multiple references
to the synchronicity of the periods of the CBA and renewed
participation agreement point only one way: until there
is a new CBA, the contribution rates must remain at the
status quo level, which is to say at the level stipulated
in the expired CBA. Had the Funds wished to protect
themselves against the economic risk of being stuck
with below-market contributions during a status quo
period, they should have insisted on different terms in the
agreement.
16 No. 06-4362
Since there was no renewed term, the Board of Trustees
had no authority to set new contribution rates and Van-
guard has no obligation to pay them. As a result, summary
judgment should be granted in Vanguard’s favor.
* * *
The decision of the district court is REVERSED. We direct
the district court to enter judgment in favor of Vanguard.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-18-07