So what Defendant really is arguing is that employers, like Plaintiff, do not have the ability to challenge any action by plan sponsors of multiemployer pension plans that may cost employers millions of dollars in withdrawal liability, at least not until after the employer has withdrawn and incurred the liability. But nowhere in ERISA § 4301, 29 U.S.C. § 1451, is there any language requiring an employer to wait until after it withdraws to bring an action under this section. In fact, after an employer withdraws and has gone through the arbitration Case 2:16-cv-01130-APG-NJK Document 11 Filed 06/30/16 Page 16 of 18 - 16 - FPDOCS 31848222.

. JB cites two cases for its misguided reading of § 1451. (Opp., at 12:8-20 (citing Borntrager v. Cent. States, Se. & Sw. Areas Pension Fund, 425 F.3d 1087 (8th Cir. 2005) and Peick v. Pension Ben. Guar. Corp., 724 F.2d 1247 (7th Cir. 1983)).)

2. ERF and its Board of Trustees are authorized to bring this action for collection of interim payments as a multi-employer pension plan under 29 U.S.C. §1451. 2.

. may bring an action for appropriate legal or equitable relief, 29 U.S.C. § 1451(a)(1), to enforce an employer’s ‘obligat[ion[] to make contributions to a multiemployer plan . . . . id.

When an employer fails to make a timely withdrawal liability payment, a fiduciary of the fund may bring a civil action on behalf of the fund to collect the missed payment, plus interest, liquidated damages and attorneys’ fees and costs. Section 502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2); see Section 4301(b) of ERISA, 29 U.S.C. § 1451(b). Second, Courts may consider the issue of “ripeness” “on a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules.”

Indeed, laws exist that permit service anywhere “the defendant resides, does business, or may be found.” See Omni Capital Int’l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104-105 (1987); 29 U.S.C. § 1451(d). Thus, doing business in a state and being found in a state are different.

The fact labor organizations are not listed is consequential because another ERISA provision, Section 515, unambiguously authorizes unions to bring suit -- but not over issues arising under Section 502. See 29 U.S.C. § 1451(a)(1) (conferring standing to “an employee organization which represents such plan participant or beneficiary for purposes of Case 1:16-cv-12506 Document 102 Filed 08/01/18 Page 4 of 21 PageID #: 2328 5 collective bargaining . . . .”); cf. Grand Union Co. v. Food Employer Labor Relations Ass’n, 808 F.2d 66, 176 (D.C. Cir. 1987) (J. Ginsburg) (“Grand Union may not fit a [Section 515] handle to a [Section 502] claim”). See, e.g., Absels v. Titan Int’l Inc., 85 F. Supp. 2d 924, 930 n.2 (S.D. Iowa 2000) (“Congress knew how and when to incorporate unions into the statutory scheme . . . .” and their “conspicuous absence” in 29 U.S.C. § 1132 “strongly suggests” that Congress intended not to grant unions standing.)

Consol’s argument suffers from the same statutory myopia as its arguments regarding cost containment and managed care. Section 9721 provides that Section 4301 of ERISA, 29 U.S.C. § 1451, “shall apply to any claim arising out of an obligation to pay any amount required to be paid by this chapter.” 26 U.S.C. § 9721; see also Holland v. King Knob Coal Co., Inc., 87 Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 16 of 18 PageID #: 1017 16 F. Supp. 2d 433, n.1 (W.D. Pa. 2000).