Board of Trustees of the District No. 15 MacHinists Pension Fund v. Kahle Engineering Corporation, a New Jersey Corporation

OPINION OF THE COURT

SLOVITER, Chief Judge.

The Board of Trustees of the District No. 15 Machinists’ Pension Fund (Fund or Pension Fund) appeals the dismissal of their action to collect an assessment of withdrawal liability filed against Kahle Engineering Corp. under the Multiemployer Pension Plan Amendments Aet of 1980 (MPPAA), Pub.L. No. 96-364, 94 Stat. 1208 (1980) (codified as amended at 29 U.S.C. §§ 1001a, 1381-1453 (1988 & Supp. V 1993)), which amended the Employee Retirement Income Security Act of 1974 (ERISA), Pub.L. No. 93-406, 88 Stat. 832 (codified as amended at 29 U.S.C. §§ 1001-1461 (1988 & Supp. V 1993)). The district court entered summary judgment against the Fund on the basis of the statute of limitations.

This appeal requires us to determine whether the district court correctly held that the six-year statute of limitations in the MPPAA began to run for the entire liability when the employer first missed an installment payment, even though the payout period was more than nine years. Apparently, no federal appellate court has addressed this precise issue of statutory interpretation under the MPPAA although two other courts of appeals have decided cases which suggest possible, and conflicting, interpretations.

I.

The Statutory Scheme

The MPPAA was enacted by Congress in 1980 as an amendment to ERISA to insure the financial stability of multiemployer pension plans by imposing mandatory liability on employers withdrawing from a pension plan. See Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539, 545, 108 S.Ct. 830, 833, 98 L.Ed.2d 936 (1987). In IUE AFL-CIO Pension Fund v. Barker & Williamson, 788 F.2d *854118 (3d Cir.1986), we identified two goals for the MPPAA: ‘“to protect the interests of participants and beneficiaries in financially distressed multiemployer plans, and ... to ensure benefit security to plan participants.’” Id. at 127 (quoting H.R.Rep. No. 869, 96th Cong., 2d Sess. 71, reprinted in 1980 U.S.C.C.A.N. 2918, 2939). The principal manner in which these goals are effectuated by the act is by the imposition of withdrawal liability on an employer who withdraws from a multiemployer pension plan in the proportionate share of the plan’s unfunded vested benefits. Crown Cork & Seal v. Central States Pension Fund, 982 F.2d 857, 861 (3d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2961, 125 L.Ed.2d 662 (1993); see also Concrete Pipe and Prods. v. Construction Laborers Pension Trust for S. Cal., — U.S. -, -, 113 S.Ct. 2264, 2272, 124 L.Ed.2d 539 (1993).

The statute sets forth an intricate scheme for the calculation and collection of the withdrawal liability and resolution of disputes with respect thereto.1 When an employer withdraws from a multiemployer plan, the plan sponsor must determine the amount of withdrawal liability, and “as soon as practicable” notify the employer of the amount of liability and the schedule for repayments and demand payment in accordance with that schedule. See 29 U.S.C. §§ 1382, 1399(b)(1). The plan sponsor must set up a schedule for withdrawal payments which may impose liability to a maximum of twenty years. Id. §§ 1399(b)(l)(A)(ii), 1399(c)(1). The first installment payment on the schedule is due within sixty days of the plan sponsor’s demand. Id. § 1399(c)(2). Under an exception for labor-disputes, the employer shall not be considered to have withdrawn from a plan solely because an employer suspends contributions during a labor dispute involving its employees. Id. § 1398.

No later than ninety days after the employer receives notice from the plan sponsor of the determination of withdrawal liability, the employer may ask the plan sponsor to review any specific matter and to reassess the schedule of payments; “may identify any inaccuracy in the determination of the amount of the unfunded vested benefits allo-cable to the employer;” and may furnish any additional relevant information to the plan sponsor. Id. § 1399(b)(2)(A). The plan sponsor must conduct a reasonable review of any matter raised by the employer, and notify the employer of its decision, the basis for its decision, and any changes made as a result of the review. Id. § 1399(b)(2)(B).

An employer who wishes to contest the fact of its liability or the amount must initiate arbitration. If it does not, it waives the right to contest the assessment and the amounts demanded by the plan sponsor become “due and owing” as set forth on the payment schedule, and the employer may be sued for collection in state or federal court. Id. § 1401(b)(1).

Under the acceleration provision of the statute available in the event of a default, the “plan sponsor may require immediate payment of the outstanding amount of the employer’s withdrawal liability, plus accrued interest on the total outstanding liability from the due date of the first payment which was not timely made.” Id. § 1399(e)(5); see also 29 C.F.R. § 2644.2(b)(2). For purposes of this section, default is defined as “the failure of an employer to make, when due, any payment if not cured •within sixty days after the employer receives written notification from the plan sponsor of such failure.” 29 U.S.C. § 1399(c)(5)(A). A default can also be “any other event defined by the plan rules which indicates a substantial likelihood that an employer will be unable to pay its withdrawal liability.” Id. § 1399(c)(5)(B).

A PBGC regulation prohibits a declaration of default for failure to make timely payments during the period, and for sixty days thereafter, that an arbitration is pending or that the plan sponsor is conducting the employer’s requested review. See 29 C.F.R. § 2644.2(c)(1). However, the statute pro*855vides that payments in accordance with the schedule set forth by the plan sponsor must be made “notwithstanding any request for review or appeal of determinations of the amount of such liability or of the schedule.” 29 U.S.C. § 1399(c)(2). If an employer misses a scheduled payment, the fund may seek to collect by filing a collection action but it may not accelerate the balance during that protected arbitration period. See United Retail and Wholesale Employees Pension Plan v. Yahn & McDonnell, 787 F.2d 128, 131 (3d Cir.1986), aff'd per curiam by an equally divided court sub nom., PBGC v. Yahn & McDonnell, 481 U.S. 735, 107 S.Ct. 2171, 95 L.Ed.2d 692 (1987) (hereinafter Yahn).

An action for liability under the MPPAA may be brought by a plan fiduciary, employer, plan participant, beneficiary or an employee organization which represents such a plan participant or beneficiary “adversely affected by the act or omission of any party” under the statute or by an employee organization. 29 U.S.C. § 1451(a)(1). That action must be filed within six years after the date on which “the cause of action” arose. Id. § 1451(f)(1).2

With the statutory scheme in mind, we turn to the facts of this case. Our task is to determine when the Pension Fund’s “cause of action” that is the subject of this suit arose.

II.

Facts and Procedural History

Kahle was a contributing employer to the Pension Fund pursuant to the collective bargaining agreements it entered into with its union. Following a labor dispute in 1981, Kahle suspended contributions to the Pension Fund. On April 23, 1984, in accordance with 29 U.S.C. §§ 1382, 1399(b)(1), the Fund notified Kahle in writing that it had determined that Kahle had withdrawn from the Fund and requested payment of withdrawal liability in the amount of $271,746, payable in thirty-eight quarterly installment payments of $9,467 each, beginning on July 1, 1984, with a final thirty-ninth payment of $6,459, payable in January, 1994.3 The April 23 letter also notified Kahle of its statutory right to request review from the Fund, to identify any inaccuracies, and to furnish any additional relevant information.

In response, on July 2, 1984 Kahle wrote that it “has not withdrawn from the Fund,” that the cessation of contributions was caused solely by a strike which commenced on June 22, 1981 and continued in 1982, and that the company remains ready and willing to negotiate with the Union. The letter stated it constituted an official request under section 4219(b)(2) of ERISA [29 U.S.C. § 1399(b)(2) ] for review of the Fund’s determination that the company had withdrawn, that withdrawal occurred on June 22, 1981 and of the figures used to calculate the withdrawal liability. Kahle enclosed a first installment payment of $9,467 with the letter. App. at 26-27.

On August 2, 1984, the Fund’s counsel advised Kahle by letter that he would raise the request for review of the withdrawal liability determination at the next meeting of the Fund Trustees and would speak to the union about Kahle’s claims of continued negotiation and representation. Counsel also *856posed questions to Kahle about its claim of continuing negotiation with the union. App. at 59-60.

Kahle’s response dated September 13,1984 made clear there were no negotiations to end the strike and that picketing continued until April 1982, but that “[b]oth parties remained at the call of the Federal Mediator.” In the last sentence of that letter, Kahle stated that “pursuant to 29 C.F.R. § 2644.2(c) the Company will discontinue quarterly payments.” 4 App. at 28-29. In fact, the referenced PBGC regulation did not authorize Kahle to withhold the scheduled payments but merely prohibited the Fund from declaring default during the pendency of arbitration. See 29 C.F.R. § 2644.2.

Kahle sent the Fund’s counsel a letter on December 20, 1984, demanding arbitration.5 Before the Fund’s counsel had received the December 20, 1984, letter, he wrote to Kahle’s counsel on December 21, 1984, stating that the Trustees saw no reason to change their determination that Kahle had withdrawn from the Plan. App. at 30. The December 21 letter also stated, “Please be ... advised that your client is now in default in its payments. Unless it cures this default by the 1st of January 1985, our client will have no alternative but to declare your client ‘in default’ and seek all remedies available to it ... under appropriate federal legislation.” App. at 30.

On December 28, 1984, the Fund noted receipt of Kahle’s letter of December 20, 1984, enclosed another copy of the Fund’s actuarial calculations, and stated again that the Fund saw no reason to alter its determination of the fact of or date of withdrawal, but indicated a willingness to review its calculations if Kahle provided more specifics. The Fund acknowledged Kahle’s demand for arbitration and suggested that the parties “proceed in accordance with the rules of the American Arbitration Association for all purposes,” reserving any objections including timeliness for the arbitrators. The Fund also offered to discuss “these matters on a less formal basis.” App. at 61-62.

There is no evidence of further communications, negotiations, or arbitration proceedings after December 1984. Kahle did not make any further payments. Almost four years later, on August 9, 1988, the Fund notified Kahle “that the company is in default in its withdrawal liability payments,” demanded all past due payments plus interest, and stated that if Kahle did not make such payments within sixty days the Fund would require “immediate payment of the total withdrawal liability, plus interest accruing from the date the first payment was due.” The Fund also demanded that Kahle post a bond for $271,746, the full amount of withdrawal liability. App. at 63-64. The record contains no evidence of further communications until the filing of this suit.

The Pension Fund filed the complaint in the United States District Court for the District of New Jersey on-September 28, 1993. The parties filed cross-motions for summary judgment. Following a hearing on February 28, 1994, the district court granted Kahle’s Motion for Summary Judgment and dismissed the case as time-barred under the MPPAA’s six-year statute of limitations. See 29 U.S.C. § 1451(f)(1).

The district court had jurisdiction under 29 U.S.C. §§ 1132(e)(1) and 1451(c) and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. A district court’s grant of summary judgment is subject to our plenary review. Mitchell v. Commission on Adult Entertainment Est, 10 F.3d 123, 129 (3d Cir.1993). Our review of the statute of *857limitations under the MPPAA is similarly plenary. Doherty v. Teamsters Pension Trust Fund, 16 F.3d 1386, 1389 (3d Cir.1994).

III.

Discussion

On the date this lawsuit was filed, September 28, 1993, Kahle was still -within the payout period established by the Pension Fund pursuant to the MPPAA for Kahle to complete payment of its withdrawal liability. That period was not scheduled to expire until January 1994. Although the six-year statute of limitations precludes the Fund’s recovery of any payments due more than six years before the filing of its complaint, and the Pension Fund apparently so concedes, we fail to see any persuasive reason why the Fund should not be entitled to recover the payments due during the six years preceding the filing of its lawsuit.

The district court reasoned that the Fund’s cause of action arose when Kahle missed its first payment in October 1984 and, at the latest, December 21, 1984.6 Under the district court’s theory, and that accepted by the dissent in this case, the failure of the Fund to file its suit within six years from that date meant that the Fund’s action was untimely, even though it was-filed while there were still payments to be made.

We believe that the district court erred when it failed to recognize that the employer’s obligation to make the scheduled payments is akin to the obligation to make installment payments. In an installment contract, a new cause of action arises from the date each payment is missed. See 4 A. Corbin, Corbin on Contracts § 951 (1951).

The principles applying the statute of limitations to installment payments are well established:

In the case of an obligation payable by instalments, the statute of limitations runs against each instalment from the time it becomes due, that is, from the time when an action might be brought to recover it.
The rule that the statute of limitations begins to run against each instalment of an obligation payable by instalments only from the time the instalment becomes due applies although the debtor has the option to pay the entire indebtedness at any time. On the other hand, where there is an acceleration clause giving the creditor the right upon certain contingencies to declare the whole sum due, the statute begins to run, only with respect to each instalment, at the time the instalment becomes due, unless the creditor exercises his option to declare the whole indebtedness due, in which case the statute begins to run from the date of the exercise of his option.

51 Am.Jur.2d: Limitation of Actions § 133.

As Corbin explains, unless there is a repudiation (analogous to a default and acceleration under the MPPAA), the plaintiff may only sue for each breach as it occurs, and the statute of limitations begins to run from that time. See Corbin supra, § 989; see also United States v. LaFrance, 728 F.Supp. 1116, 1119-20 (D.Del.1990) (holding that the cause of action for collection of installment payments under a Small Business Administration loan accrues on each installment from the date it falls due in the absence of acceleration).

The analogy of scheduled payments under the MPPAA to installment payments was adopted by the Eleventh Circuit when it held that interest accrues on overdue withdrawal liability from the due date of each missed payment rather than from the due date of the first installment. See Carriers Container Council v. Mobile S.S. Ass’n, 948 F.2d 1219, 1222-24 (11th Cir.1991). The court reasoned that accruing interest from the date of the first installment would amount to an improper retroactive acceleration of interest. Id. at 1223. But cf. New York Teamsters Conference Pension & Retirement Fund v. McNicholas Transp. Co., 658 F.Supp. 1469, 1476 (N.D.N.Y.1987) (ordering interest from first date of missed payment under schedule), aff'd, 848 F.2d 20 (2d Cir.1988). Although the context of Carriers Container was differ*858ent than the ease before us, that court’s treatment of each installment as a separate amount due is in line with the theory proffered by the Pension Fund.

The Fund also refers us to Ludington News Co. and Michigan UFCW/Drug Employers Pension Fund Workers Union and Drug and Mercantile Employers Joint Pension Fund, 9 Employee Benefits Cas. (BNA) 1913 (1988), an arbitrator’s decision viewing the withdrawal liability as an installment contract obligation under which “the statute does not begin to run with respect to a particular installment until that installment falls due.” Id. at 1916. Although we recognize that Ludington is without precedential effect, it was cited as relevant by another circuit. See Joyce v. Clyde Sandoz Masonry, 871 F.2d 1119, 1124 (D.C.Cir.), cert. denied, 493 U.S. 918, 110 S.Ct. 280, 107 L.Ed.2d 260 (1989). We also note that Ludington relied on Jackson v. American Can Co., 485 F.Supp. 370 (W.D.Mich.1980), a case that does provide a meaningful analogy. In Jackson, the court declined to apply the statute of limitations as a basis to summarily dismiss an action by a retiree who had been told in 1963 of the decision to give him reduced pension benefits when they became due in 1973. Id. at 374-75. The court noted that the pension plan may qualify as an installment contract, under which claims do not accrue until each payment comes due. Id. at 374.

The strongest authority in support of the holding of the district court and the arguments of Kahle is the decision of the Seventh Circuit in Central States, Southeast and Southwest Areas Pension Fund v. Navco, 3 F.3d 167 (7th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1062, 127 L.Ed.2d 382 (1994), which, although it arose in another context, rejected the position of the pension funds in that case that a new cause of action arose when the employer failed to make each scheduled payment when due.

In Navco, the pension funds sought to recover the unpaid withdrawal liability from Navco, a partnership which was part of a corporate group with two firms which withdrew from a pension plan. The pension funds relied on the MPPAA provision that all members of a group under “common control” are liable for each other’s withdrawal liability. Id. at 169 (citing 29 U.S.C. § 1301(b)(1)). Suit against Navco was filed more than six years after the first payment by its affiliated corporations was due. Id. at 170. The district court dismissed the suit as untimely, rejecting the claim of the pension funds that they had six years from their discovery of the existence of Navco to file suit. The court of appeals affirmed, agreeing that the statute of limitations ran from the accrual of the cause of action rather than from the discovery of the identity of additional responsible persons, id. at 172, an issue not before us.

Because suit was filed more than six years after the first scheduled payment was due (but within six years of the last scheduled payment), the court also had to consider when the cause of action accrued. It agreed with the district court that the whole claim comes due when the first payment is missed, phrasing its analysis as follows:

The pension fund has only one claim against the employer (and, derivatively, against the controlling persons): the amount of withdrawal liability. Although a fund may permit an employer to amortize this sum over 20 years, 29 U.S.C. § 1399(c)(1)(B), the whole amount is presumptively due at the outset. Section 1391 calls on the pension plan to determine an amount that is owed; the financing options under § 1399(c) do not break this single debt into little pieces with their own statutes of limitations.

Id. at 172.

Even before turning to the policy behind the MPPAA, we find the Navco decision unpersuasive. Consider, for example, a mortgage with a twenty-year payout in a jurisdiction with a six-year statute of limitations. If, for some reason, the mortgage company fails to sue the mortgagor for more than six years after the mortgagor fails to pay the first and succeeding payments, would it be seriously argued that the mortgage company is precluded thereafter from suing for those payments due within the six years preceding the lawsuit or from exercising the acceleration clause as to the remaining fourteen years?

*859Moreover, we believe that the reasoning of the Seventh Circuit is not supported by the statutory language nor the purposes behind the statutory scheme of the MPPAA. The position of Kahle and Navco that the whole sum becomes due and the whole claim accrues when the first payment is missed in effect imposes a compulsory acceleration clause. This reads out of the statute the relevant statutory provision "with respect to acceleration codified in 29 U.S.C. § 1399(c)(5), which makes acceleration discretionary. That provision states:

(5) In the event of a default, a plan sponsor “may require immediate payment of the outstanding amount of an employer’s withdrawal liability, plus accrued interest on the total outstanding liability from the due date of the first payment which was not timely made.

29 U.S.C. § 1399(c)(5) (emphasis added). •

One must assume that when Congress provided that in the event of a default “a plan sponsor may require immediate payment of the outstanding amount of an employer’s withdrawal liability,” Congress also intended that the plan sponsor could decide not to accelerate the outstanding balance. That option is nugatory if Kahle is correct, because the claim would accrue automatically upon default.

We cannot overlook that the statute endorses setting a schedule of periodic payments lasting up to twenty years. See 29 U.S.C. § 1399(c)(1)(B). If, after making timely payments for the first year, the employer ran into financial difficulty and missed two quarterly payments, under the literal language of the Navco opinion the claim for the remainder of the unpaid liability would have accrued at that time. Suppose, however, that the employer regains some financial stability, pays the past due claims, and resumes making timely payments for six years. Thereafter, it ceases all payments. Is the pension fund’s claim for the remaining thirteen years of payments now barred because it failed to file suit within six years of the first missed payment? We see nothing in the statutory language that requires the patently inequitable result of permitting an employer to escape much of the twenty years of scheduled withdrawal payments because an action to collect the entire balance is not brought within six years after any one missed payment.

Indeed, such a result would, if accepted, set up perverse incentives. Automatic default on the entire balance from the date of the first missed payment discourages amicable resolution of disputes and discourages reentry into the fund as a contributing employer. If an employer is late on one payment of misses a payment, must the plan sponsor refuse to accept a late payment and press for the entire balance, even if this pushes the company into insolvency? Forcing the plan sponsor into a position where it must pursue zealous collection efforts at the expense of facilitating negotiations over reentry or waiting for a collective bargaining agreement between the employer and the union undercuts the .need for flexibility to ensure solvency.7

Although there is no evidence in the record as to industry practice in these circumstances, there appears to be some merit to the argument made in the brief of the Ami-cus Curiae National Coordinating Committee for Multiemployer Plans in support of the Pension Fund that presumptive default, as adopted by the Seventh Circuit in Navco, will force trustees to accelerate and sue, even though this action may not be in the best interests of plan participants and beneficiaries. See Amicus NCCMP Brief at 6.

*860The Pension Fund’s position receives support from the decision of the D.C. Circuit in Clyde Sandoz. 871 F.2d at 1120. The court reversed the dismissal of an action brought by the pension fund to recover the assessed withdrawal liability from the employer because the district court had erroneously measured the six-year period from the employer’s withdrawal from the fund. In its opinion, the D.C. Circuit held that the cause of action arose from the date upon which the employer failed to make a payment on its withdrawal liability demanded by the plan sponsor. The court reasoned that the action that “adversely affected” the plan was the failure to make the scheduled payment, and that therefore the cause of action accrued at that time. The court’s discussion of the effect of an employer’s failure to make a payment that is “due and owing,” 29 U.S.C. § 1401(b)(1), according to an amortized schedule lends some support to the Pension Fund’s argument that the cause of action for individual payments does not accrue until the payment date has passed, because only then is the payment “due and owing” within the statute. Id. at 1123-24.

The Clyde Sandoz court also referred to the purpose of the MPPAA in its interpretation of the statute, noting that that purpose was to ensure fund solvency by continuing payments under an amortized withdrawal liability schedule of payments. The court observed that Congress’s overriding purpose of ensuring plan solvency was followed by a more general goal of facilitating collection and a narrower goal of ensuring prompt collection. Id. at 1126.

We are not unaware of the argument that Congress signalled its interest in prompt resolution of withdrawal liability by requiring the plan sponsor to send the withdrawing employer a notice and demand for payment “as soon as practicable” after the withdrawal, see 29 U.S.C. § 1399(b)(1), and that spreading the time to file a complaint for missed payments under the “installment contract” theory of liability would run counter to this intent. But as the Clyde Sandoz court noted and the Congressional history demonstrates, Congress was interested in establishing a balance between different goals. When Congress deems time of the essence, it establishes a statute of limitations considerably shorter than the six-year statute in the MPPAA, see 29 U.S.C. § 1451(f)(1), among the longest in federal statutes. Congress’s express authorization to the plan sponsor to establish a lengthy twenty-year period for the schedule of payments, see 29 U.S.C. § 1399(c)(1)(B), provides strong evidence that Congress wanted to give the employer an extended period of time to be able to accrue the funds to pay the withdrawal liability. It is unlikely Congress would have done so had it believed that the beneficiaries of multi-employer funds would suffer drastically if the plan sponsors select payout periods that give the employer up to a twenty-year period to pay out the entire amount due.

We find apt the language used in Clyde Sandoz in rejecting a similar argument that focused on the need for prompt collection of withdrawal liability. The court stated:

Sandoz’s reading of the purposes and policies animating the MPPAA is curiously one-dimensional. To be sure, Congress has indicated that promptly collecting outstanding sums is desirable_ The employer’s reading of the statute would elevate one narrow statutory policy (favoring prompt collection) over the more general goal (collection) and overriding purpose (solvency) which animate and generate that narrow preference. There is no indication that the Act requires, as Sandoz would have it, either prompt collection or no collection at all.

871 F.2d at 1126.

Kahle overstates its case when it argues that the installment analysis would give the Fund “limitless time to file a complaint,” Appellee’s Brief at 15, an argument echoed by the dissent. The Fund is still subject to the six-year statute of limitations. Thus, a plan sponsor which had established a twenty year payout and chose to wait twenty years to pursue its cause of action would only be able to collect the last six years of installments and would necessarily forego the remainder, a result which should provide adequate disincentive to unnecessary delay. The plan sponsor remains subject to the fiduciary duties placed on it by ERISA and *861the MPPAA, and it is therefore unlikely that the running of the statute of limitations will be at the plan sponsor’s “whim,” as the dissent suggests.8

In light of the statutory language, we reject the district court’s holding that the cause of action for all of the unpaid withdrawal liability accrues when the first installment payment is missed.9

IV.

Conclusion

We conclude that under the statutory scheme established by the MPPAA, a plan sponsor has six years from the date a payment is due to sue for its recovery. Absent a decision by the Fund to accelerate, the cause of action for payments not yet due does not begin to run when the first such payment is missed. In this case, it is undisputed that the great bulk of the unpaid installments were due by Kahle within six years of the filing of the complaint by the Pension Fund. It follows that the Fund was not time-barred from bringing suit for the total of the quarterly payments which fell due within the six years prior to the filing of this suit.10

For the reasons set forth above, we will reverse the grant of summary judgment dismissing the complaint and remand for further proceedings.

. The statutory scheme is supplemented by regulations promulgated by the Pension Benefit Guaranty Corporation (PBGC). As enacted in 1974, ERISA created the PBGC within the Department of Labor "to administer and enforce a pension plan termination insurance program” and granted it the statutory authority to promulgate regulations in carrying out the purposes of ERISA. See Concrete Pipe, - U.S. at —, 113 S.Ct. at 2271 (citing 29 U.S.C. § 1302(a)-(b)).

. Under another prong of the statute of limitations provision, not at issue here, the action may also be brought within three years after the plaintiff knew or should have known of the existence of such a cause of action except that in the case of fraud or concealment, this "discovery prong” is extended to six years. The full text of the provision is:

An action under this section may not be brought after the later of—
(1) 6 years after the date on which the cause of action arose, or
(2) 3 years after the earliest date on which the plaintiff acquired or should have acquired actual knowledge of the existence of such cause of action; except that in the case of fraud or concealment, such action may be brought not later than 6 years after the date of discovery of the existence of such cause of action.

See 29 U.S.C. § 1451(f).

. We note that the payment figures total $366,-205, which the Pension Fund explained in the district court was attributable to interest on the principal amount of $271,746. Kahle objected to the interest, but it is unclear whether it objected to the fact of interest or its computation. We will leave that issue to the district court on remand.

. The September 13 letter was never received by Fund counsel although the Fund does not contest its contents, and there are later letters that referred to it. The Fund appears to have suggested in the district court that the September 13 letter constituted a demand for arbitration that tolled the accrual of its cause of action and the consequent statute of limitations, but the district court gave that argument short shrift because it is undisputed that neither party took any steps to invoke the arbitration procedure. In the view we take of the statute of limitations issue, we need not decide whether the allusion to arbitration by the employer would have stopped the accrual of the cause of action for any length of time.

. The contents of this letter, and particularly the demand for arbitration, are referred to in the Fund counsel's subsequent letter of December 28, 1984. App. at 61-62.

. It is not clear from the record on what basis the district court concluded that the latest date for accrual of the cause of action was December 21, 1984.

. There is support in the legislative history that Congress intended to grant some discretion to plan sponsors. Specifically, the House Education and Labor Report notes that the MPPAA purposefully gave plan fiduciaries "a great deal of flexibility to strike a balance among the competing considerations of encouraging new entrants, discouraging withdrawals, easing administrative burdens, and protecting the financial soundness of a fund.” H.R.Rep. No. 96-869, 96th Cong., 2nd Sess. 67 reprinted in 1980 U.S.C.C.A.N. 2918, 2935. Furthermore, even if the plan sponsor chooses rules that "would eliminate or reduce liability, the choice of such a rule is not per se a violation of a fiduciary standards [sic]; the determination must be made as .to whether the fiduciary has acted reasonably ... and in accordance with the fiduciary standards.” Id.

. We find curious the dissent's concern that under this opinion Kahle will escape payment of over $150,000 (presumably the amount the dissent calculates was due under the twelve payments from October 1984 through July 1987), dissent typescript op. at 32, when under the dissent’s view Kahle would escape payment for the remaining 26 payments, which a rough calculation shows would be more than $250,000, assuming interest as computed by the Fund.

. The dissent appears to suggest that the notice of default sent by the Pension Fund to Kahle on April 23, 1984 could be viewed as the acceleration notice authorized under 29 U.S.C. § 1399(c)(5). Kahle has not so argued nor did the district court so view it. Nothing in the language of the April 23, 1984 letter suggested acceleration. The Pension Fund argues that there is a distinction between the mandatory notice that sets the amount of withdrawal liability and the schedule for repayments, required under 29 U.S.C. §§ 1382, 1399(b)(1), and the discretionary notice of acceleration authorized under 29 U.S.C. § 1399(c)(5), which it contends it sent on August 9, 1988. There is some statutory support for the distinction, as the two notices are in separate provisions, and the acceleration provision would have no significance if the mandatory notice of the amount of withdrawal liability were also to be viewed as a notice of acceleration.

In this case, we need not decide whether the plan sponsor would retain the right to accelerate and sue for the total amount due had it previously brought an action to recover a delinquent payment, because that is not what happened here. The Fund did not bring any earlier suit. Furthermore, because all of the payments accelerated as of the August 9, 1988 notice (from August 9, 1988 to the final payment due January, 1994) are covered by the six-year period before the filing of the complaint (which would sweep back to September 28, 1987), we need not consider the effect of the August 9, 1988 notice. Presumably, the one or two quarterly payments due after the filing of the complaint will be covered by supplement or amendment to the complaint.

.Because of the view we take of the dispositive facts, any disputes between the parties as to the effect of the letters sent in 1984 are irrelevant to our disposition. For the same reason, we need not consider equitable arguments raised by the Pension Fund.